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R v Lavulavu [2023] TOSC 45; CR 173-174 of 2018 (19 May 2023)

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


CR 173, 174 of 2018


REX
-v-
[1] AKOSITA LAVULAVU
[2] ‘ETUAUTE LAVULAVU


Mr Lavulavu’s application to strike out the prosecution as an abuse of process


RULING


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
Mr ‘Etuate Lavulavu in person
And to: Ms A. Kafoa for Mrs ‘Akosita Lavulavu
Hearing: 5 May 2023

Ruling: 19 May 2023

The application

  1. On 10 October 2022, the Court of Appeal quashed convictions against both Defendants for obtaining money by false pretences and ordered a retrial. The retrial was listed to commence before me on 8 May 2023, on an estimate of four weeks. On 17 April 2023, the Prosecution filed an amended indictment.
  2. By application filed on 2 May 2023, Mr Lavulavu seeks an order striking out or dismissing the prosecution against him on the grounds that:
  3. The Prosecution opposes the application.

Background

  1. The following uncontroversial background is derived from the judgment of the Court of Appeal.
  2. In 2003, Mr Lavulavu and others established the ‘Unuaki ‘O Tonga Royal Institute (UTRI) which is a private education provider with its head office situated at Tofoa and a branch in Vava’u. Mr Lavulavu was the President of UTRI at all material times and Mrs Lavulavu its Director from 2010 to 2016.
  3. UTRI had been accredited as a technical and vocational educational institute by the Tonga National Qualification Authority Board (TNQAB). It was accordingly entitled to obtain financial assistance from the Ministry of Education and Training (MET) under the Ministry’s Technical Vocation Educational Training (TVET) scheme. Under the scheme a grant would be made at the rate of $600 per fee-paying or “receipted” student enrolled for each semester.
  4. Applications for grants were submitted by UTRI:
  5. At the request of the MET, the Office of the Auditor General undertook an audit of the records of UTRI. The findings, recorded in an audit report dated 5 October 2016, were:
  6. The recommendations of the Auditor General included that the total alleged over payment of $553,800 be reimbursed to the MET and that the case be referred to the police for possible further investigation.

The original charges

  1. The Defendants were originally charged jointly with three counts of obtaining money by false pretences contrary to s.164 of the Criminal Offences Act and three counts of knowingly dealing with forged documents contrary to s.172.
  2. During the committal proceedings before the Magistrates Court in 2018, the Defendants submitted that there was no case to answer. The Prosecution submissions in response attached a Schedule, running to approximately 80 pages, of all Crown witnesses proposed to be called and a précis of their respective evidence. Principal Magistrate Mafi dismissed the no case submission.
  3. The original indictment before this Court was filed on 1 February 2019. The case was then managed by Cato J. On 3 September 2020, shortly before his Honour’s retirement, the proceedings were adjourned to a call over on 29 January 2021. At that stage, the estimate of the trial duration was 40 sitting days or eight weeks. The estimate was calculated on the basis of the Prosecution calling between 30 and 40 witnesses. However, at the call over, Mr Lutui pointed out that in the absence of agreement as to certain facts, there was a potential for over 300 witnesses to be called. Of those, he described two as being crucial. Counsel for the Defendants at the time indicated that they might call over 200 witnesses.
  4. On 1 April 2021, Cooper J assumed management of the case and set a trial date commencing 13 April 2021.
  5. Shortly before the trial, the three forgery charges were withdrawn by agreement. The case therefore proceeded to trial in respect of the first three charges, in which the Defendants were jointly charged as follows:

Count 1

OBTAINING MONEY BY FALSE PRETENCE, contrary to section 164 of the Criminal Offences Act.

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 29 May 2014, at Nuku’alofa, you did obtain $146,400 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2013 but you knew that was false, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 2

OBTAINING MONEY BY FALSE PRETENCE, contrary to section 164 of the Criminal Offences Act.

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 18 November 2014, at Nuku’alofa, you did obtain $249,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 416 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 3

OBTAINING MONEY BY FALSE PRETENCE, contrary to section 164 of the Criminal Offences Act.

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 29 June 2015, at Nuku’alofa, you did obtain $162,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2015 but you knew that was false, and the Ministry of Education and Training relied on that false representation and paid the said money.”

  1. The parties tendered a statement of agreed and disputed facts. Mr Lavulavu was then represented by Mr William Edwards of Counsel.

The first trial

  1. The trial commenced before Cooper J on 26 April 2021. During the trial, Mr Edwards ceased to act for Mr Lavulavu and Mr Lavulavu withdrew his earlier agreement to certain of the agreed facts. The trial concluded on 21 May 2021.
  2. On 4 June 2021, Cooper J convicted both defendants of all three charges.
  3. On 2 July 2021, Cooper J sentenced the Defendants to six years imprisonment with the final year of Mrs Lavulavu’s sentence being suspended for two years on conditions.

Post conviction

  1. The Defendants appealed both decisions on a number of grounds.
  2. On 9 July 2021, an application to the Court of Appeal for bail pending determination of their appeal was refused on the primary basis that the grounds had not been sufficiently developed (due largely to the fact that the transcript of the trial had not been requested and therefore not fully prepared) to enable any reasonable assessment of their prospects of success: Lavulavu v R [2021] TOCA 26.
  3. The appeals were initially listed to be heard in the first session of the Court of Appeal in 2022. On 20 May 2022, the hearing of Mr Lavulavu’s appeal commenced. However, the Court considered that his appeal should be heard with Mrs Lavulavu’s. Both were then scheduled to be heard in the second session commencing 3 October 2022.
  4. On 7 July 2022, both Defendants filed a second application for bail. On 29 July 2022, Mr Lavulavu filed an application for me to recuse myself from hearing the second bail application. On 25 August 2022, the recusal application was dismissed: Lavulavu v R [2022] TOCA 17.
  5. On 2 September 2022, the second bail application was granted.

The appeal

  1. On 10 October 2022, the Court of Appeal[1] allowed the Lavulavus’ appeal on the basis that the trial was unfair: Lavulavu v R [2022] TOCA 22.
  2. During the course of judgment, and relevantly to the instant application, the Court held:
“[33] In opening its case, the Crown did not rely on the principles of agency. Mr Lutui explained that the Crown case at trial was that both Mr and Mrs Lavulavu were principal offenders. The Crown did not seek to distinguish between the legal basis of their roles. However, at an early stage of the trial the Judge made it clear that, in his view, the doctrine of agency should be invoked to establish that the appellants or either of them made a false representation. So, he said, even though Mrs Lavulavu may not have signed the 2015 application and Mr Lavulavu had signed none of the applications, they may be shown to have made the representations. As to Mr Lavulavu’s position he commented:
‘doesn’t matter if his name appears on it or not. Married working together the two must seen a people on a business of course of course it was both their behalf of this applications were made’[sic][2]
[34] We have no difficulty with the proposition that it is not essential that an accused actually make the false representation in order to prove the offence. That could arise if the accused acts jointly with the representor as the Crown contends occurred here. Alternatively, and more commonly, guilt is established by the accused person’s role as an accessory. In Tonga the basis on which such secondary liability may arise is spelt out in section 8 of the Criminal Offences Act which provides:
8 Abetment of crime and punishment of abettor
Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person and every person who knowingly does any act for the purpose of facilitating the commission of an offence by any other person is an abettor and shall (unless otherwise expressly specified by any enactment) —
[35] By reference to section 8, the question would relevantly be whether Mr Lavulavu encouraged or procured the commission of the offences or did any act for the purpose of facilitating the commission of the offences. The Judge appeared to recognize that Mr Lavulavu’s culpability should be analysed in that way but then reverted to his earlier stated view that the issue could be determined by reference to the law of agency. He said:
‘That the correct way to define the role of Mr Lavulavu, as alleged, is that he aided, abetted, or procured the alleged offences. That is not how the Crown ever put their case. The doctrine of agency logically and correctly as a matter of law, summarises and encapsulates their case.’
[36] While Mr Lutui stoutly maintained that agency principles could properly be invoked in a case such as this, no authority was cited to us in support. The rules of agency with their particular requirements relating to knowledge and authority have no place in a case such as this. We see no reason why the evidence should not be analysed in the usual way by considering whether the elements of the offence have been established, if necessary, by reference to the statutory provisions for establishing guilt as a party.”
  1. After considering the other grounds of appeal, the Court concluded:
“[83] There is accordingly ample evidence to support findings of apparent bias on the part of the Judge and that the trial was unfair. The verdicts cannot stand. For the reasons already covered, we are satisfied, however, that there was sufficient evidence to support convictions on a correct application of relevant legal principles. A retrial must accordingly follow.”

Post appeal

  1. On 23 November 2022, the matter came before me in respect of applications by Mr Lavulavu for the return of his passport and permission to travel overseas, and for the Court to officially declare that his record was clear of the subject charges. One of the bases for the latter application advanced by Mr Lavulavu was clause 12 of the Constitution, which provides:

Accused cannot be tried twice

No one shall be tried again for any offence for which he has already been tried whether he was acquitted or convicted except in cases where the accused shall confess after having been acquitted by the Court and when there is sufficient evidence to prove the truth of his confession.

  1. On 24 November 2023, I refused both applications. In relation to Mr Lavulavu’s argument based on clause 12, I held that:
“13. Clause 12 does not have the effect as contended for by Mr Lavulavu. The legal definition of the word ‘quash’ is to make void or annul. Accordingly, the effect of the order of the Court of Appeal in quashing the verdict below is that there is no verdict in respect of the indictment presented and upon which the original trial proceeded. In other words, the Lavulavus have as yet been neither acquitted or convicted of the charges. Therefore, any risk of double jeopardy, to which clause 12 is directed, does not arise.
14. That there is legal power to retry the Lavulavus is made plain by ss 17(2) of the Court of Appeal Act which provides, relevantly, that where an appeal against conviction is allowed, the Court shall either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial. Here, the Court ordered the latter.
15. As explained to Mr Lavulavu during the hearing, any complaints he might have about the Court of Appeal’s decision to order a retrial rather than a directed acquittal were misplaced, because:
(a) the Court of Appeal remains the highest and final appellate court in the Kingdom for matters of criminal law;
(b) it is not for a single judge of the trial division of the Supreme Court to entertain such complaints;
(c) during the appeal, the submissions advanced by counsel for the Lavulavus included the ramifications of any finding of an unfair trial, including a retrial;[3]
(d) in Kami, the Court of Appeal there found that by reason of a very significant admission the complainant made in his examination in chief that the information he had been given by the appellant the subject of the charge, was true, any further prosecution seeking to establish that the appellant had made a false representation was doomed to fail;
(e) in Lasike, which involved possession of ammunition without a licence, a verdict of acquittal was entered because the Court of Appeal there considered that it would not be in the interests of justice for the Crown to re-prosecute the charge where the evidence in its entirety was before the court and the Crown had failed to make out its case on the basis it elected; and
(f) by contrast, in the instant case, the Court of Appeal held that there was sufficient evidence adduced at the trial to support the convictions.
16. Whether or not that same evidence is adduced at any retrial remains to be seen. For the avoidance of any doubt, I wish to make absolutely clear that, for the purposes of any retrial, which, as presently informed, will be presided over by me, I have not had and will not have regard to any of the evidence that was adduced at the original trial or any observations by the Court of Appeal in relation to that evidence. Any retrial will be conducted, and its outcome will be determined, solely on the basis of the evidence adduced at that retrial, the submissions made, and according to law.
17. Tonga does not yet have any criminal procedure rules to provide for the process, timing and manner in which any retrial is to be conducted. Nor, to the best of my researches, has any previous decision of the Kingdom considered the point. For instance, in the UK, ss 7 and 8 of the Criminal Appeal Act 1968 require a fresh indictment to be presented upon the direction of the Court of Appeal and for the accused to be arraigned within two months thereof. In the absence of any such legislation, I am of the view that the original indictment here has not yet been discharged and therefore remains operative until it has been finally determined according to law.
18. The practical effect therefore is that the Lavulavus are in the same position they were immediately prior to the commencement of the original trial. Unless and until the DPP, with the consent of the Attorney General,[4] decides to enter a nolle prosequi or elect not to present evidence or in any other way terminate the Prosecution, Mr and Mrs Lavulavu continue to face the charges contained in the indictment.”
  1. Further, in relation to the retrial, I stated that:
“28. ... I do regard it as important for the DPP to expeditiously decide whether to proceed with any retrial. The interests of justice, which include those of Mr and Mrs Lavulavu and their need for certainty, the Crown, any witnesses to be called and the community’s interest in the limited resources of the State and the Court being applied efficiently and effectively, will not be fostered and are in fact likely to be prejudiced, by any undue delay in proceeding with this matter one way or the other. Any connection between Mr Lavulavu’s recent complaints to the Tonga Law Society about the original trial and any decision whether to proceed with a retrial was not elucidated by Mrs Aleamotu’a during her submissions.
29. For that reason, I direct that, by 30 November 2022, the DPP is to file a notice as to whether the Crown intends to proceed with a retrial.
30. Further, if by that date, the Crown decides to proceed, the retrial will be listed to commence on 8 May 2023 and on an estimate of four weeks.”
  1. As indicated in the above passages, since the Court of Appeal’s decision, Mr Lavulavu has lodged several complaints including to the Commissioner of Police, the Attorney General and the Tonga Law Society about the Auditor General and the members of his investigation team, as well as Mr Lutui and the members of the Prosecution team who conducted the first trial. For present purposes, it is unnecessary to detail them further.
  2. On 30 November 2022, the Prosecution filed a notice confirming that it would proceed with the retrial.
  3. On 14 December 2022, I granted a further application by Mr Lavulavu for a variation of his bail conditions to permit him to travel to Vava'u, Haa’pai and ‘Eua for work purposes.
  4. On 7 February 2023, the Attorney General filed an application for the committal of Mr Lavulavu for contempt of court arising from comments he made during a broadcast interview about the original trial and Cooper J.[5]
  5. On 28 February 2023, I determined that of the six comments by Mr Lavulavu alleged by the Crown as constituting contempt, only the sixth - that Cooper J’s decision was influenced by political figures and persons of high rank - presented a prima facie case. Mr Lavulavu pleaded not guilty to that count and the case was listed for trial before Tupou J.
  6. Having heard nothing further from the parties, and with the 8 May trial date looming, on 11 April 2023, I directed that a pre-trial conference be conducted on 21 April 2023.

Amended indictment

  1. On 17 April 2023, the Prosecution filed an amended indictment which is the subject of this application. Relevantly, the amendments split the charges so that the first three counts are as against Mrs Lavulavu and the second three counts are as against Mr Lavulavu. The particulars to the counts against both now include that they intended for the Ministry to act on the alleged false representations. Count 3 specifies that Mrs Lavulavu made that alleged representation “through Mele Tovi”. The counts against Mr Lavulavu now invoke s.8 of the Criminal Offences Act by alleging that he abetted Mrs Lavulavu in obtaining financial advantages by false pretences by indirectly encouraging her to do so. For completeness, the full text of the amended indictment is set out hereunder with the material alterations underlined:

‘AKOSITA LAVULAVU

Count 1

Obtaining Money by False Pretences, contrary to section 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu of Vava’u on or about 29 May 2014, at Nuku’alofa, together with ‘Etuate Lavulavu, you did obtain $146,400 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Education Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2013 but you knew that was false, and you intended for the Ministry of Education and Training to act on the false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 2

Obtaining Money by False Pretences, contrary to section 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu of Vava’u on or about 18 November 2014, at Nuku’alofa, together with ‘Etuate Lavulavu, you did obtain $249,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Education Training Grant that there were 416 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and you intended for the Ministry of Education and Training to act on the false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 3

Obtaining Money by False Pretences, contrary to section 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Akosita Lavulavu of Vava’u ‘on or about 29 June 2015, at Nuku’alofa, together with ‘Etuate Lavulavu, you did obtain $162,600 from the Ministry of Education and Training by false pretence, when you represented through Mele Tovi, in an application for funds from the Technical Vocational Education Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2015 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.


‘ETUATE LAVULAVU

Count 4

Abetment to Obtaining Money by False Pretences, contrary to section 8 and 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Etuate Lavulavu of Vava’u on or about 29 May 2014, at Nuku’alofa together with ‘Akosita Lavulavu, you did obtain $164,400 from the Ministry of Education and Training by false pretence, by indirectly encouraging ‘Akosita Lavulavu to represent in an application for funds from the Technical Vocational Educational Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2013 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 5

Abetment to Obtaining Money by False Pretences, contrary to section 8 and 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Etuate Lavulavu of Vava’u on or about 18 November 2014, at Nuku’alofa together with ‘Akosita Lavulavu, you did obtain $249,600 from the Ministry of Education and Training by false pretence, by indirectly encouraging ‘Akosita Lavulavu to represent in an application for funds from the Technical Vocational Educational Training Grant that there were 416 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Count 6

Abetment to Obtaining Money by False Pretences, contrary to section 8 and 164 of the Criminal Offences Act

PARTICULARS OF THE OFFENCE

‘Etuate Lavulavu of Vava’u on or about 29 May 2015, at Nuku’alofa, together with ‘Akosita Lavulavu, you did obtain $162,600 from the Ministry of Education and Training by false pretence, by indirectly encouraging ‘Akosita Lavulavu to represent in an application for funds from the Technical Vocational Educational Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2015 but you knew that was false, and you intended for the Ministry of Education and Training to act on that false representation, and the Ministry of Education and Training relied on that false representation and paid the said money.

Pre-trial conference

  1. On 21 April 2023, the pre-trial conference was conducted. Ms Kafoa confirmed that she and her client, Mrs Lavulavu, were ready to proceed with the trial on the amended indictment. Mr Lavulavu opposed the amendments to the indictment. He contended that they constitute an abuse of process and that, as a result, the prosecution against him should either be struck out or the amendments disallowed, in which case, the trial should proceed on the original indictment. Directions were then given which required Mr Lavulavu to file a formal application for the prosecution against him to be struck out; alternatively, that the amendments be disallowed, together with any supporting affidavits, submissions and authorities by 28 April 2023; the Prosecution to file responsive material by 3 May 2023; and (necessarily given the close proximity to the trial date) for the application to be heard on Friday, 5 May 2023.
  2. On 28 April 2023, Tupou J found Mr Lavulavu guilty of contempt of court and gave directions for sentencing which is currently pending.

Mr Lavulavu’s applications

  1. In purported response to the 21 April 2023 directions, Mr Lavulavu filed the following applications:
  2. Also on 4 May 2023, a statement of agreed and disputed facts was filed as between the Prosecution and Mrs Lavulavu.[6] A similar exercise was attempted with Mr Lavulavu. He did not agree to anything.

Hearing of the applications

  1. On 5 May 2023, during the course of oral argument, Mr Lutui advised that the Prosecution would likely have to call significantly more witnesses than anticipated (another 18 plus on top of the 12 originally intended) and that therefore the four-week trial estimate would likely be exceeded. That, together with the likelihood of appeal (by one party or the other) against this ruling on the abuse of process application, and the impossibility of me being able to resume any part heard trial post 31 August (when my tenure as Chief Justice expires), meant that the trial date had to be vacated. Mr Lavulavu agreed.
  2. I raised with Mr Lutui and Mr Lavulavu whether, in those circumstances, the applications should be reserved to the next Lord Chief Justice who will likely hear the retrial. Both agreed that I should hear and determine the applications.
  3. At the conclusion of the hearing:

Mr Lavulavu’s submissions

  1. On this application, Mr Lavulavu filed approximately 500 pages of primary and reply submissions, authorities, his affidavit in support and exhibits.
  2. The substance of Mr Lavulavu’s complaints may be summarised as follows.
  3. In relation to his contention that the amendments to the indictment are an abuse of process, Mr Lavulavu submits that:
  4. Mr Lavulavu referred to passages from Rex v Derby Crown Court ex parte Brooks,[7] Moti v The Queen,[8] and placed principal reliance on lengthy passages from the decision in Hamzy v R [9] and the authorities cited therein. He also referred in his submissions to other New South Wales decisions in Petroulias v R (Cth),[10] Abdallah v R,[11] R v Johnston,[12] and R v Tasich,[13] but did not cite any comparable facts, passages or propositions from them. He also included in his bundle of authorities the decision in R v Standen,[14] but did not refer to it at all in his submissions.
  5. In relation to clause 12 of the Constitution, Lavulavu submitted:

Subject to the special provisions of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial.

cannot overrule and is inconsistent with clause 12 of the Constitution. Therefore, a retrial is not allowed.

(d) If the Court of Appeal had ordered a new trial, Prosecution may have the right to amend the indictment.
  1. In relation to the Prosecution’s delay in amending the indictment, Mr Lavulavu submitted:

Prosecution submissions

  1. Mr Lutui’s written submissions may be summarised as follows.
  2. The insertion in the amended particulars of the allegation that the Defendants "intended for the Ministry of Education and Training to act on that false representation" is only to reflect the new element recently introduced by the Court of Appeal for an offence of obtaining by false pretence. Mr Lavulavu does not appear to have not objected to that.
  3. The insertions in respect of Mr Lavulavu of abetment pursuant to s.8 of the Criminal Offences Act, specified by the allegation in the particulars that he “indirectly encouraged” Mrs Lavulavu to make the alleged representations to the Ministry, does not introduce a new or different charge and does not introduce new elements. The Crown relies on the provisions of sections 8 and 12 of the Act. Section 8 has been recited above. Section 12 provides:

12 Abettor deemed a party to any offence committed as a result of his counselling

Every person who counsels. incites or procures another to commit an offence is a party to every offence which that other commits in consequence ofsuch counselling. inciting or procuring and which the person counselling, inciting or procuring knew or ought to have known would be likely to be committed in consequence of such counselling, inciting or procuring.

  1. In R v Taliai [2018] TOSC 36, Cato J described the operation and effect of s.8 as follows:
“[18] Section 8 of the Criminal Offences Act in my view does not create a crime or a discrete offence of abetment. All that it does, as section 8 of the Accessories and Abettors Act 1861 (UK) does, is to create a basis for complicity in the offending by somebody else aiding and abetting and common purpose (joint principals) in this case murder or manslaughter, as he case may be. Whether it be a common purpose or traditional aiding and abetting as in a concerted attack alleged here seems to me on these facts as I have said to be academic. All that the Crown prosecutor has to do is to include either section 8 or 15 or both in the particulars for murder and manslaughter and in my view the indictment is acceptable. The Crown will fill out to the Jury in opening what it says or submits is the basis of complicity either under common purpose or aiding and abetting in concerted action or both but as I see it, there is little if any difference in these circumstances, that is aiding and abetting in this case would be sufficient to properly reflect the case. ...”
  1. As the offence remains the same, the amended indictment cannot be taken as enhancing the Prosecution’s case. The Prosecution intends to rely on the same evidence used in the first trial. In that respect:
  2. The Prosecution’s submissions in relation to the clause 12 argument were substantially the same as those presented when the issue was first dealt with in November 2022. However, they were supplemented by reference to the 1956 decision of Hunter J in Police v Kulanoa.[15] There, his Honour opined that having regard to its common law origins in the doctrines of autrefois acquit and autrefois convict, clause 12, properly construed, prohibits “the prosecution of a person who has already been properly tried according to law whether he was acquitted or convicted”. The Prosecution submitted that as the effect of the Court of Appeal’s decision is that Mr Lavulavu has not yet been properly tried, clause 12 has no application.
  3. On the issue of delay, the Prosecution relied on its submissions in respect of the foregoing grounds as the bases for contending that there can be no unfairness or prejudice caused to Mr Lavulavu.
  4. During his oral submissions, Mr Lutui developed and clarified his written submissions, in summary, as follows.
  5. His advice, as recorded at paragraph 41 hereof, of the likely need for the Prosecution to call additional witnesses to those called at the original trial, had arisen as a result of the lack of agreement with Mr Lavulavu about facts which had been agreed at the first trial and also Mr Lavulavu’s application to exclude the Auditor General's report (filed on 1 May 2023) from the evidence at the retrial on the principal ground that the Auditor General’s findings and recommendations were based on hearsay. It was not then clear whether this is the first time during the entire proceedings that Mr Lavulavu had raised such an application. For instance, there was no apparent reference to any such application or any finding in respect of same by Cooper J in his Honour’s original reasons for verdict. Mr Lavulavu said he had not previously filed such an application. Mr Lutui seemed to recall that he had. The uncertainty is probably best resolved by the fact that the Auditor General’s report was referred to extensively in the original verdict. Thus, it may be assumed, for present purposes, that either the admissibility of the report was not then challenged, or if it was, Cooper J refused to exclude it.
  6. Mr Lutui tentatively acknowledged the possibility, therefore, that if Mr Lavulavu’s current application to exclude the Auditor General’s report is successful, in whole or in part, the Prosecution may, among other things, need to call as many of the persons who were claimed by UTRI to have been legitimate students, but which the Prosecution alleges were not, as can be located. In that regard, Mr Lutui said that the passage of time has given rise to logistical difficulties in locating many of those witnesses, some of whom are known, for example, to be overseas on the seasonal workers program.
  7. Mr Lutui reiterated that the amendments to the indictment did not amount to the Prosecution seeking to patch up its case, but rather their purpose is to assist Mr Lavulavu by being more specific about his alleged conduct.
  8. Otherwise, Mr Lutui confirmed that the substance of the evidence the Prosecution intends to call at the retrial remains unchanged from that adduced at the original trial.
  9. When asked to explain the delay in amending the indictment, Mr Lutui passively circumvented the question by submitting that any impacts on Mr Lavulavu caused by the delay had been attenuated by the retrial being deferred.

Mr Lavulavu’s reply submissions

  1. Mr Lavulavu filed written reply submissions on the morning of the hearing. Apart from repetitions of his primary submissions, Mr Lavulavu submitted that:

Consideration

  1. After considering the submissions and other material relied on by the parties, including the cases referred to by Mr Lavulavu, I turn now to examine the remaining grounds of his application.

Abuse of process

  1. Mr Lavulavu was correct when he observed that there does not appear to be any (or any published) decision in the Kingdom addressing his contention that the amendments to the indictment are an abuse of process.
  2. In its submissions, the Prosecution elected not to engage directly with the legal principles relevant to such an application but rather sought to fend off Mr Lavulavu’s criticisms by analysis of the nature of the amendments as being the same charge for the retrial as opposed to Mr Lavulavu’s more generalised characterization of them as a “completely different charge”.

Legal principles

  1. Subject to any legislative constraint, the Court possesses an inherent power to protect the integrity of its own processes, to prevent those processes being used in a manner which gives rise to injustice, to prevent abuse of process and to safeguard the administration of justice: Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [113].[16] The power to stay proceedings for abuse of process has been said to include a power to safeguard an accused person from oppression or prejudice. Proceedings on an indictment or a count in the indictment[17] may be stayed where they constitute an abuse of the court's process: Connelly v DPP [1964] AC 1254.[18] The power has been described as a formidable safeguard, developed by the common law, to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so: Attorney General of Trinidad and Tobago v Philip [1995] 1 A.C. 396, PC.
  2. In Moti v R (2011) 245 CLR 456,[19] the High Court of Australia identified two fundamental policy considerations which affect abuse of process in criminal proceedings. First, "the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike". Second, "unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice". Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements”.
  3. In Moevao v Department of Labour [1980] 1 NZLR 464,[20] the New Zealand Court of Appeal took a wide view of what might constitute such an abuse. The approach is best exemplified in the judgment of Richardson J, who stated:
“It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the court is protecting its ability to function as a court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the court's processes may lend themselves to oppression and injustice.”
  1. In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness: Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302 per Ipp JA at [17].
  2. The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case.
  3. The applicant bears the onus of establishing an abuse of process which justifies a stay: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529 and Watson v Attorney-General (NSW) at 344.
  4. A permanent stay of proceedings for an abuse of process is a measure of last resort, to be used sparingly: Rex v Tupou [2000] TOSC 35.[21] It will only be ordered in the clearest cases where there is no other way to prevent an unfair trial: Rex v Taloa [2004] TOSC 61.[22] It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court. Before ordering a permanent stay, a court will consider whether any potential unfairness can be ameliorated by appropriate directions: R v Jacobi (2012) 114 SASR 227 at [34]-[59].[23]
  5. The power is discretionary, to be exercised in a principled way, and will be used only in exceptional circumstances to order that a criminal prosecution be stayed because otherwise public confidence in the administration of justice would be diminished: Jago v District Court of New South Wales (1989) 168 CLR 23.[24] It is within the public interest that serious allegations are disposed of on their merits: Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 at [32].
  6. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Jago v District Court of New South Wales, ibid.[25] The court must be satisfied that the continuation of the proceedings would involve unacceptable injustice, or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [23].[26] A mere risk of unacceptable injustice or unfairness is insufficient: R v Johnston [2021] NSWDC 321.[27]
  7. The “power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands”: Jago at 74 per Gaudron J.
  8. In Moti v R, the majority of the High Court stated that decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some “exhaustive dictionary of words” by one or more of which executive action must be capable of description before proceedings may be stayed: Strickland v Commonwealth Director of Public Prosecutions, ibid, at [99]. As Kirby J aptly summarised the position in Truong v R:[28]
“Relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.”
  1. It follows that the power to stay proceedings for abuse of process can be exercised in many different circumstances including, for instance, where:
  2. However, two main strands can be detected in the authorities:[31]
  3. While, as noted in Moti, each case will depend on its own facts, more specific examples of circumstances which may result in proceedings being stayed for abuse of process include:[32]
  4. For an illustration of improper manipulation or misuse by the prosecution of the criminal process, see R v Piggott and Litwin [2009] EWCA Civ 47; [1999] 2 Cr.App.R. 230, CA, where it was held to be an abuse of process to prosecute an indictment that had been amended at a previous trial so as to substitute a charge that could not be tried fairly at the time of its substitution.
  5. On the question of retrials and whether amendments to the indictment after the order of the appellate court for a retrial or whether a retrial to proceed on a different Crown case might lead to irremediable unfairness to a Defendant, in Hamzy, the decision upon which Mr Lavulavu places principal reliance, his Honour Whitford SC DCJ identified and discussed the following principles from the Australian authorities:
“[60] The accused submitted that those authorities recognise that “[i]t is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendants”: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 273 per Kirby J, referring to Reid v The Queen [1980] AC 343 at 349-350. Justice Kirby was, with the Chief Justice and Justice Callinan, in dissent in Taufahema. The decision of the majority in that case, and other authorities which precede and follow it (such as Parker v R [1997] HCA 15; (1997) 186 CLR 494; and Gilham v R [2012] NSWCCA 131) make clear that the broad proposition articulated by Kirby J is subject to some qualification, and that questions of degree must be considered in individual cases.
[61] There has apparently been a division among members of the High Court, as reflected in particular in Taufahema, as to the extent to which qualification to that broad proposition should be tolerated. That division as to policy or principle, at least for present purposes, has been decided by the majority in Taufahema in favour of somewhat more flexibility than Chief Justice Gleeson and Callinan J in their joint judgment and Kirby J, in a separate judgment, were apparently prepared to countenance.
[62] Notwithstanding that their Honours were in dissent in the result, there is a lengthy passage in the reasons of Gleeson CJ and Callinan J in Taufahema (at [35]-[38]) which it seems to me illustrates well the landscape within which decisions under s 8 are made and highlights some of the pertinent considerations, which, in my assessment, demonstrate the analogical value of like decisions to the present context.
[63] It may be that the extent to which the dictates of justice will tolerate departure on a re-trial from the consequences of considered decisions taken in the initial formulation of a case will change over time according to the strictures, including practical and economic, that operate upon the administration of justice from time to time. The sort of development in this regard that I have in mind is the move in recent years, at least in the context of the administration of justice in civil jurisdictions, away from a more leisurely approach to litigation, maybe appropriate to times long past, to a philosophy that recognises expedition and economy along with justice as considerations important in the determination of discretionary and other issues in the prosecution of cases.
[64] In an environment where the resources of this Court are so notoriously stretched and the consequent delays in matters coming on for trial and sentence so long, a more rigid rather than more leisurely approach to adherence by parties to considered decisions is appropriate and fundamental to the administration of justice in a way that does not visit oppression upon opposing parties.
[65] Quite apart from institutional considerations, it must also be borne in mind that there are extensive costs and pressures associated with criminal prosecutions that inevitably impose significant burdens on accused individuals. Those costs and burdens become ever more significant in an environment of limited resources and inevitable court delays and serve as an additional dictate for more rigid adherence to considered decisions in order to avoid oppression that might inevitably arise otherwise.
...
[73] The authorities confirm that the Crown may “remould” its case on a retrial, but that it must retain the “basic factual premises that underlie the Crown case”: Gilham per McClellan CJ at CL at [655].[40] A retrial cannot be used by the Crown to reconstruct or “patch up” its case: Anderson at 453.[41]
...
[84] Having regard to the nature and scope of the inevitable burdens of being subject to criminal prosecution, as catalogued by Deane J in the passage from Jago outlined above, there is a powerful case that it is unjustifiably oppressive, and fundamentally contrary to the proper administration of justice to submit a presumptively innocent citizen repeatedly to those burdens, particularly on account of considered decisions of the prosecuting authorities poorly made.
[85] It is not, and should not be, a normal incident of the due administration of criminal justice and of the criminal process generally that accused persons should be subject multiple times, with the attendant (and likely escalating) burdens each time, to pursuit of the same or similar allegations, on the same evidence, in order to enable a generally relatively more resource rich party, the prosecuting authority, to rectify patent errors in the considered decisions made by it in pursuit of the first agitation of those allegations.
[86] Likewise, repetitive prosecution to overcome errors made through pursuit of considered but erroneous forensic decisions is not and should not be an unavoidable concomitant of the presumption of innocence and the public administration of criminal justice by the courts and it is not something which individuals must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction.
[87] The proper administration of justice and the just disposition of the multitude of pending cases that have demands on the limited and stretched resources of the courts is not assisted by allowing a prosecuting authority to serially revisit its forensic failings.
[88] Robust and efficient administration of justice obviously requires that the considered decisions of litigants be competently made, and by ensuring that parties are bound to those considered decisions.
[89] It brings the system into disrepute to permit parties to patch up cases and to serially subject other litigants, in particular parties accused in criminal proceedings, to the substantial burdens associated with re-litigation of issues or allegations already advanced in one form or another.
[90] Of course, standing counter to the considerations just outlined is the powerful public interest in ensuring that those guilty of serious crimes are brought to justice. A decision between the competing considerations involves difficult questions of weight and degree. Decisions of a kind on which minds might reasonably differ.
[91] The different treatment of two participants in the one alleged enterprise is not unusual, but it is preferably avoided. Inconsistent treatment and inconsistent outcomes, while strictly permissible and contemplated in particular contexts, as evidenced for example by s 11.2A(7) of the Code, is not generally to be encouraged. All the more so if to permit inconsistent outcomes involves allowing a party to revisit considered forensic decisions poorly made and subjecting another party repeatedly to the burden of defending allegations already litigated, albeit on an erroneous foundation or formulation.”

[emphasis added]


Application

  1. I turn now to an application of the above principles to Mr Lavulavu’s contentions which may be cogently condensed to and considered by reference to the following questions.

Do the amendments to the indictment constitute a “completely different charge”?

  1. Both Mr and Mrs Lavulavu remain charged with three counts each of obtaining money by false pretences contrary to s.164 of the Criminal Offences Act. That offence resides within Part X of the Act: Offences against property. Section 8 lies in Part II entitled “Abetment, Harbouring Criminals, Conspiracy, etc.”.
  2. The Court of Appeal herein resolved the controversy as to whether Mr Lavulavu’s alleged part in the offending ought be characterised by resort to the principles of agency or the abetment provisions of s.8. Their Honours observed that Cooper J appeared to recognize that Mr Lavulavu’s culpability should be analysed in that latter way but then reverted to his earlier stated view that the issue could be determined by reference to the law of agency.
  3. The present amendments, expressly invoking s.8 do nothing more than give effect to the Court of Appeal’s decision. It was one of correcting the legal characterisation of the allegations against Mr Lavulavu, not a change to their factual substratum or the substantive offence to be considered at retrial. In that way, the reference to s.8 in the amended indictment serves to refine and add precision to the allegations against Mr Lavulavu by specifying his alleged role in the offending. The requisite element of s.164, for both Defendants in each count, of false pretences, remains unchanged.
  4. As Cato J explained in Taliai, the accessorial liability provisions of s.8 of the Act do not create a separate offence. It merely prescribes the circumstances, actions and role by which a person, other than a principal offender, may be liable in respect of the offence. Section 8 therefore does not give rise any additional or different legal elements to the offence created by s.164. Of course, the facts of Mr Lavulavu’s alleged involvement as an abettor in creating the alleged false pretences (the creation of the information for the applications for TVET grants submitted to the Ministry) will have to be established. But, as Mr Lutui explained before me, to do that at the retrial, the Crown intends to rely on the same evidence from the first trial that Mr Lavulavu directed UTRI staff as to how to compile the alleged false student lists.
  5. It is notable that during the Defendants’ first bail application pending appeal, and consideration of the agency ground and its prospects of success, the ruling recorded:[42]
“Of course, the concept of agency as referred to in Archbold is closely related to the criminal law principle of accessorial liability by way of aiding and abetting, etc. But, as the trial judge noted, that is not how the Prosecution put its case. I did not understand Mr Edwards to submit that the Prosecution was obliged to do so; rather, that it was ‘more appropriate’ for the applicants to have been charged in accordance with the relevant provisions of the Criminal Offences Act concerning accessorial liability. Given that ss 8(a) of the Criminal Offences Act provides that an abettor is liable to the same punishment as the principal offender, the significance of the submission proved elusive.”
  1. Therefore, all that has been clarified by this aspect of the amendments is Mr Lavulavu’s role. As Cato J stated: “All that the Crown prosecutor has to do is to include either section 8 or 15[43] or both in the particulars ... and in my view the indictment is acceptable”. I respectfully agree.
  2. The additional particular in all six counts of intention is also an element identified by the Court of Appeal. It arises by operation of law on the proper construction of s.164 and consideration of the requisite mens rea for the offence. Specifically, the Court held:
“[30] That derives from the requirement that the representor obtain a benefit for himself or another. For this purpose, principle requires an intention that the representation cause or induce the representee to confer a benefit on the representor or another person. This avoids any possibility of the representor being criminally liable for an unintended consequence of the false representation. The mens rea of the offences is, accordingly, knowledge of the falsity of the representation (the false pretense) and an intention that the representation should be acted on to secure a benefit (the obtaining). Knowledge of the falsity of the representation by itself does not constitute the mens rea of the offence. The representor must also know or intend that the representation will be acted on.”
  1. Again, this aspect of the amendments is the result of the Court of Appeal providing guidance on the elements of s.164. It does not alter the nature of the charge to be proved. Whether any different evidence will be required at the retrial to prove the element of intention has been answered by Mr Lutui in the negative. It may be, as is often the case, that to establish the mental element of intention, the Court will be asked to draw reasonably available inferences having regard to all the relevant surrounding and accepted evidence.
  2. I will return to the additional particulars to counts 4 to 6 that Mr Lavulavu “indirectly encouraged” Mrs Lavulavu to make the alleged representations to the Ministry when considering the final issue below.
  3. For those reasons, I find that the amendments do not constitute a different charge.

Do the amendments alleging Mr Lavulavu to be an abettor and no longer a principal offender constitute a material and substantial change to the Crown’s case against him?

  1. For much the same reasons as given in answer to the preceding issue, the answer to this issue must be “no”. Both Mrs Lavulavu, as the alleged principal offender, and Mr Lavulavu, as an alleged abettor, are charged with a breach of s.164. As noted above, the amendments do not change that. Any suggestion by Mr Lavulavu that, if the retrial is to proceed, it will involve a material and substantial change to the Crown’s case against him must be assessed by reference to the charges for each trial and the evidence adduced in the first and to be adduced in the second. The offences remain the same. Mr Lutui has assured me that the substantive evidence will be the same. As observed by the Court of Appeal,[44] the Crown’s case at the first trial was not that Mr Lavulavu signed any of the grant applications. An illustration of the Crown’s case against Mr Lavulavu may be found in following passage from the Court of Appeal’s decision:
“[10] The Crown relied on the evidence of two witnesses, Mele Tovi and Felisita Kivalu, to establish that the lists of eligible students were compiled at the direction of both Mr and Mrs Lavulavu. ...”
  1. According to Mr Lutui, that remains the substance of the Crown’s case and evidence against Mr Lavulavu for the retrial. Despite Mr Lavulavu’s professed suspicions and speculation, I do not have any evidence or other objective basis for doubting the Crown’s stated position.
  2. It may well be that there will be more and different evidence adduced by the Crown at the retrial. However, as explained by Mr Lutui, and not refuted by Mr Lavulavu, the reasons for that, should it eventuate, are likely to include Mr Lavulavu’s change of position compared to the first trial such as him recently declining to agree to any of the facts alleged (no matter how historically uncontroversial or benign) and his extant challenge to the admissibility of the Auditor General’s report. While he has every right to require the Prosecution to prove every fact relevant to the elements of the offences charged and there is, as yet no stated basis upon which Mr Lavulavu may be precluded from seeking to have evidence excluded from the re-trial as legally inadmissible, any resulting changes to the preparation and presentation of the evidence at the retrial are not matters for which the Prosecution may be considered responsible. Further, and as presently informed, none of that will have any bearing on the core evidence proposed to be re-adduced by the Crown in respect of its case against Mr Lavulavu and his role on the offending as now specified in the amended indictment.

Is there any authority in Tonga which permits or prohibits the Prosecution from amending the indictment?

  1. As Mr Lavulavu noted, there are no statutes or curial decisions in Tonga which answer this question. Mr Lutui did not suggest otherwise, and my research has not uncovered any.
  2. The only provisions which are remotely relevant are clauses 11[45] to 13[46] and 89[47] of the Constitution although none of them provide an answer. Even though clause 13 is entitled “Charge cannot be altered”, the Court of Appeal in R v Fukofuka [2019] TOCA 11 explained:
“[27] This provision must be read with clause 89 of the Constitution which confers upon judges the power to direct the form of indictments. This provision, supplemented by the inherent jurisdiction of the Supreme Court to control its processes to ensure the proper administration of justice, enables the trial judge to direct the amendment of an indictment appropriately so long as any such amendment does not conflict with the Constitution or any enactment.
[28] So, for example, the judge may direct an amendment of the charge to conform to the proof established by the evidence; to amend the indictment in all or any of the ways set out in Clause 13 of the Constitution; or as permitted by section 196(2) of the Criminal Offences Act in relation to alternate charges. It should also he noted that section 42 of the Criminal Offences Act deals with the substitution of lesser charges in murder trials and with the circumstances in which an accused may be convicted of included charges.
[29] All these provisions demonstrate that, subject to the identified restrictions in the Constitution or by statute, there are extensive powers to present and amend an indictment in the Supreme Court and that the charges presented are not confined to those upon which the accused is committed for trial. This conclusion is consistent with the proper administration of justice in the criminal jurisdiction.”
  1. The Court of Appeal Act and its Rules are silent on the issue of amendment before retrial. Apart from the Criminal Offences Act, there are, as yet no other statutes or criminal procedure rules in force in Tonga, which, as in many other jurisdictions (in one form or another) might have addressed this issue.
  2. Therefore, in Tonga, in the absence of domestic statutory provision or curial authority, the only safeguard against conduct which may be regarded as unfair or oppressive by a prosecuting authority in the exercise of prosecutorial discretion whether by way of presentation and/or amendment of indictments, decisions to initiate and/or continue with a criminal prosecution or how a prosecution is conducted at trial, is the Court’s inherent jurisdiction to protect against injustice and abuses of it processes.
  3. It follows that in relation to Mr Lavulavu’s allied issue as to whether the Prosecution were granted leave, or required leave, of the Court of Appeal to amend the indictment as it has, the answer is “no” on both counts.
  4. It is patent by the terms of the final disposition of the appeal that the Court of Appeal did not grant, nor was it asked to consider granting, leave to the Prosecution to amend the indictment for the retrial which was ordered. That is not at all surprising given the order for a retrial could not have been known prior to the judgment being delivered. The better question though is whether any such leave was or is required?
  5. There is also no legislation in Tonga on this issue.
  6. In his submissions, Mr Lavulavu acknowledged the Court of Appeal’s ruling on the correct analysis of the evidence of his involvement as being “[b]y reference to section 8, the question would relevantly be whether Mr Lavulavu encouraged or procured the commission of the offences or did any act for the purpose of facilitating the commission of the offences” and that there was “no reason why the evidence should not be analysed in the usual way by considering whether the elements of the offence have been established, if necessary, by reference to the statutory provisions for establishing guilt as a party”.
  7. In my view, it is highly unlikely that the Court of Appeal, particularly after their Honours’ observation that “there was sufficient evidence to support convictions on a correct application of relevant legal principles”,[48] would have considered it appropriate to order a retrial but that the retrial should proceed without regard to the guidance given in respect of the legal elements of s.164 and the application, in relation to the evidence against Mr Lavulavu, of s.8 for the purposes of establishing accessorial liability. As I have found above, those statements of principle by the Court of Appeal are unlikely to affect the substance of the Crown case to be presented at retrial, only the precision with which it is presented in the now amended indictment.
  8. In that regard, it is notable that in his written primary submissions,[49] Mr Lavulavu stated that if the Court of Appeal had ordered a new trial, the Prosecution may have a right to amend the indictment. Any assumed distinction between ordering a retrial or a new trial may be academic because ss 17(2) of the Court of Appeal Act in fact provides:

Subject to the special provisions of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial.[50]

[emphasis added]

  1. On this point, the decision in Mark Edward Lundy v R [2018] NZCA 410 is instructive. There, the New Zealand Court of Appeal considered it implausible to suggest that in ordering a retrial in that case, the Privy Council would not have anticipated that the Crown case presented at the retrial would endeavour to take into account the criticisms that had brought the Privy Council to the view that the original conviction was unsafe. During the retrial (for murder) after the Privy Council judgment, some aspects of the Crown case changed. It abandoned unsatisfactory aspects and strengthened others by further expert evidence. However, the Court of Appeal held that notwithstanding, the essential elements of the Crown case remained. It could not be said the defendant on the retrial had to confront a different set of allegations requiring him to mount a significantly different defence. The retrial did not require the Crown to present a case on which the defendant had been substantially acquitted, or a new case which had not been presented at the first trial. Therefore, the retrial could not properly be described as unfair or an abuse of process.
  2. In my opinion, similar considerations apply to the instant case.
  3. Further, clause 31A of the Constitution provides, relevantly, that the Attorney-General shall be in charge of all criminal proceedings on behalf of the Crown, and unless otherwise provided by law, shall have complete discretion to exercise [her] legal powers and duties, independently without any interference whatsoever from any person or authority. The “law” includes the inherent jurisdiction of the Supreme Court to control its processes to ensure the proper administration of justice. Subject to that, a significant margin of discretion is given to prosecutors: R (Monica) v DPP [2018] EWHC 3508 (Admin), [2019] 1 Cr App R 28 (363).
  4. Therefore, I find that leave of the Court of Appeal to amend the indictment was not a necessary requirement and that the absence of an express grant of leave by the Court of Appeal does not prohibit the Prosecution from amending the indictment.

Do the statutory provisions in the United Kingdom governing retrials apply?

  1. When Mr Lavulavu stated in his primary submissions, that “[i]n the United Kingdom, a retrial requires that an accused is retried for the same offence that he or she was convicted”, and in his reply submissions that “[t]he English Act does not allow on a retrial for the Crown to amend its indictment. The rule is that it must be the same offence and same facts and same evidence to be heard on a retrial”, he did not specify any particular statute or provision/s in support of those propositions.
  2. In light of my findings on the first issue above, namely, that the charges in the amended indictment against Mr Lavulavu remain as three counts against s.164, his first proposition is probably moot. However, the expanded propositions in his reply submissions warrant further consideration.
  3. If Mr Lavulavu was referring to s 84 of the Criminal Justice Act (UK) 2003, then that section provides:

84 Retrial

(1) Where a person—

(a) is tried pursuant to an order under section 77(1), or

(b) is tried on indictment pursuant to an order under section 77(3),

the trial must be on an indictment preferred by direction of the Court of Appeal.

(2) After the end of 2 months after the date of the order, the person may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal gives leave.

(3) The Court of Appeal must not give leave unless satisfied that—

(a) the prosecutor has acted with due expedition, and

(b) there is a good and sufficient cause for trial despite the lapse of time since the order under section 77.

(4) Where the person may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order and—

(a) for any direction required for restoring an earlier judgment and verdict of acquittal of the qualifying offence, or

(b) in the case of a person acquitted elsewhere than in the United Kingdom, for a declaration to the effect that the acquittal is a bar to his being tried for the qualifying offence.

(5) An indictment under subsection (1) may relate to more than one offence, or more than one person, and may relate to an offence which, or a person who, is not the subject of an order or declaration under section 77.

(6) Evidence given at a trial pursuant to an order under section 77(1) or (3) must be given orally if it was given orally at the original trial, unless—

(a) all the parties to the trial agree otherwise,

(b) section 116 applies, or

(c) the witness is unavailable to give evidence, otherwise than as mentioned in subsection (2) of that section, and section 114(1)(d) applies.

  1. While at first blush, that provision may appear to be of some significance to Mr Lavulavu’s argument, any such enthusiasm is dashed upon the realization that s.84 is within Part 10 entitled “Retrial for serious offences” which, commencing at s.75, is concerned only with applications by Prosecutors for retrials of persons acquitted of a qualifying offence. Mr Lavulavu was not acquitted in the first trial or on appeal.
  2. If, on the hand, Mr Lavulavu was referring to the UK Criminal Appeal Act 1968, then, relevantly, sections 7 and 8 thereof provide:

7 Power to order retrial.

(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.

(2) A person shall not under this section be ordered to be retried for any offence other than—

(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above;

(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

(c) an offence charged in an alternative count of the indictment in respect of which no verdict was given in consequence of his being convicted of the first-mentioned offence.

8 Supplementary provisions as to retrial.

(1) A person who is to be retried for an offence in pursuance of an order under section 7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal, but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave.

(1A) Where a person has been ordered to be retried but may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order for retrial and to direct the court of trial to enter a judgment and verdict of acquittal of the offence for which he was ordered to be retried.

(1B) On an application under subsection (1) or (1A) above the Court of Appeal shall have power—

(a) to grant leave to arraign; or

(b) to set aside the order for retrial and direct the entry of a judgment and verdict of acquittal, but shall not give leave to arraign unless they are satisfied—

(i) that the prosecution has acted with all due expedition; and

(ii) that there is a good and sufficient cause for a retrial in spite of the lapse of time since the order under section 7 of this Act was made.

...

  1. Those provisions of the UK Criminal Appeal Act were referred to in the November 2022 ruling,[51] where it was also noted that Tonga does have any equivalent legislation. That ruling was not appealed. Notwithstanding, in his submission on this issue, Mr Lavulavu sought to reargue the point.
  2. During his oral submissions, I suggested to Mr Lavulavu that the effect of the 2003 amendments to the Civil Law Act is that resort to UK statutes is no longer available in Tonga and that only the English common law and rules of equity may be applied where the Tongan statutes do not cover the point, and with such modifications as may be required by the circumstances prevailing in the Kingdom: Leiola Group Ltd v Moengangongo [2010] TOCA 10 at [11]. As such, the law in Tonga comprises the Constitution (as the supreme law), other statutes as passed by Parliament and assented to by the King, subordinate legislation, and curial decisions in respect of legislation, the common law and rules of equity as they apply in the Tongan context: Helu v Electoral Commission [2022] TOSC 76 at [79].
  3. Mr Lavulavu disagreed. He stated that he was a Member of Parliament when the 2003 amendments were enacted and that their effect is that “UK statutes can be used if there is no Tongan statute”. Mr Lavulavu did not seek to support his assertion by production of any Parliamentary record to that effect or by analysis of the relevant provisions.
  4. Prior to the 2003 amendments, ss 3 and 4 of the Civil Law Act, concerning the general civil law to be applied and the extent of application encompassed “the common law of England and the rules of equity together with statutes of general application in force in England”. On 26 August 2003, the Civil Law (Amendment) Act 2003 received Royal Assent. Section 2 and 3 of the amending Act amended ss 3 and 4 of the principal Act, relevantly, by deleting all references to the phrase “statutes of general application”.
  5. To ascertain Parliament’s intention, the natural and ordinary meaning of the words of the Act must be read in their context and in light of the purpose of the Act: Crown v Schaumkel [2012] TOCA 10. If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning: Gough Finance Ltd v Westpac Bank of Tonga [2005] Tonga LR 390 at 394.
  6. In my view, there is no uncertainty or ambiguity in the meaning or effect of the amending provisions, and none was suggested by Mr Lavulavu. His submission therefore cannot be accepted. Accordingly, I find that pursuant to the 2003 amendments to the Civil Law Act, the UK statutes have no application.
  7. However, even if the UK provisions applied, a plain reading of them elicits two observations. Firstly, they do not amount, as Mr Lavulavu asserted, to a requirement that the retrial be conducted on the “same offence and same facts and same evidence”. Secondly, ss 7(2) of the UK Act would (if it applied) require Mr Lavulavu to be retried, relevantly, for the offence of which he was convicted at the original trial and in respect of which his appeal was allowed or an offence of which he could have been convicted at the original trial. Mr Lavulavu is to be retried for offences against s.164 of the Criminal Offences Act which were the same offences for which he was tried at the original trial. Further, as the Court of Appeal made clear, but for unfairness in the conduct of the original trial, “there was sufficient evidence to support convictions on a correct application of relevant legal principles”. Those principles include the application of the abetment provisions of s.8.

Are the NSW decisions relied on by Mr Lavulavu persuasive?

  1. Having found that there is no statutory provision or curial decision in Tonga which elucidates this application, and that the relevant UK statutes have no application, the question falls to be answered by consideration of common law principles.
  2. No issue has been raised by either party on this application as to whether, in the absence of relevant domestic legislation, common law principles may be applied to criminal cases in Tonga. Despite its title, and the reticence of Ford J (as his Honour then was) in Vete v R [2002] Tonga LR 308 to entertain the submission (but without deciding the point[52]), I remain of the view that the operative provisions of the Civil Law Act do not limit or exclude the importation of the English common law in criminal proceedings in Tonga: Lavulavu v R [2021] TOSC 111 at [59]. Common law principles have been applied regularly in criminal proceedings in the Supreme Court where the relevant legislation does not provide for a given issue, and the Court of Appeal has, with similar regularity, referred to and applied common law principles in the criminal context.[53]
  3. Further, even though as observed above, the Civil Law Act only refers to the English common law, a practice has developed in this Court and the Court of Appeal, over many years, of also referring to statements of principle as adopted and developed in other common law based jurisdictions. More particularly, s.16 of the Evidence Act provides that:[54]

Judgments of superior courts of Commonwealth territories will be regarded as having persuasive authority.

  1. On this application, all the decisions relied on by Mr Lavulavu, who professed no legal training or experience, are from either the New South Wales Court of Criminal Appeal or District Court.
  2. Within the hierarchy of courts in Australia, the NSW Court of Criminal Appeal, like all other superior courts in their appellate jurisdiction, is a superior court of a Commonwealth territory. However, and with great respect to the judges upon whose decisions Mr Lavulavu has relied, the NSW District Court is not a superior court of record but an intermediate court, first created in 1858 and reformed in 1973 by the District Court Act. Therefore, apart from the statements of principle contained therein, as recorded above in the legal principles section of this ruling, and which I have found of great assistance, this Court is not bound to consider the NSW District Court decisions as having persuasive authority.
  3. There are two other factors which bear on the extent to which the decisions relied upon by Mr Lavulavu may be instructive on this application. Firstly, any decision of another common law based jurisdiction will have limited, if any, application where the issue or proposition for which it is advanced arises within a statutory framework which has either replaced or modified the common law and which has no application or is not reflected in Tongan law. Secondly, and subject to the first, the persuasiveness of any application of principle in those decisions is likely to be in direct proportion to the degree of similarity between the facts considered in those decisions and the present.
  4. An example of the first factor may be found in the UK decision of Booker v R [2001] UKHL 54; [2011] 1 Cr App R 26, [2011] 3 All ER 905. In that case, the defendant was convicted, after a retrial, of conspiracy to supply a class A drug. The defendant's original conviction had been quashed, and a retrial ordered, on the basis that evidence at the original trial had been unfairly introduced and used by the prosecution. The prosecution case, at both trials, was that the defendant had been a 'runner' for a network that supplied cocaine. Section 5(1) of the UK Indictments Act 1915 provided that where, before trial, or at any stage of trial, it appeared to the court that the indictment was defective, the court was to make such order for the amendment of the indictment as the court thought necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments could not be made without injustice. At the retrial, the prosecution successfully applied to amend the indictment to add other defendants, C and B. C pleaded guilty to conspiracy to supply a class A drug. B had not been a defendant at the first trial. He had not been charged until after the defendant had lodged his appeal against conviction after the first trial. The defendant's application for a separate trial was refused. At the retrial, B's defence appeared to be the same as the defendant's defence: that he had visited the property at the centre of the alleged network, which had been under CCTV observation, for the purposes of the distribution of boxes of counterfeit clothing, not drugs. However, in giving evidence, B admitted delivering boxes of cannabis. The defendant's defence had been substantially and adversely affected by B's evidence. The defendant appealed against conviction, seeking to rely on a general principle that it was not permissible to allow amendment of an indictment at a retrial if to do so put a defendant in a worse position than he had been at the original trial.[55] The court considered the relation between s 5 of the 1915 Act and the provision in ss 7(2)(b) of the UK Criminal Appeal Act 1968, which has been recited above.
  5. The Court of Appeal held that ss 7(2) of the 1968 Act dealt with charging for different offences on retrial and specific situations in which that could arise. It contained no ban on adding a defendant to the indictment and s 5(1) of the 1915 Act should not be applied as if it did contain a ban. Section 7(2) did not proscribe the exercise of the trial judge's power to permit an amendment under s 5(1). There was no general principle that previously absent co-conspirators could not be tried with a conspirator subject to retrial. Although it could be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice required that too restrictive an approach should not be taken. While the Court accepted that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken. A defendant may often be in a worse position at a retrial, amendment or not, because further evidence has emerged, or is better presented, and he cannot normally complain about that. However, the requirement of fairness inherent in ss 7(2) could spill over into consideration of a decision to add a defendant. If a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, the court would not permit it. In dismissing the appeal, the court held that the judge had been entitled to permit the amendment of the indictment was not prepared to conclude that there had been an abuse of process.
  6. Another example is R v Johnston [2021] NSWDC 321, one of the cases referred to by Mr Lavulavu. There, the Director of Public Prosecutions issued an ex officio indictment[56] under ss 7(2)(c) of the Director of Public Prosecutions Act 1986 (NSW), by which the applicant was charged with sexual assault contrary to ss 61KC(a) of the Crimes Act 1900 (NSW). Mr Johnston applied for a permanent stay of the proceeding on the basis that it amounted to an abuse of process. Upon examination of the relevant legislation and principles (some of which have been noted above), the application was refused.
  7. In relation to the second factor, and with the exception of the decision in Hamzy (which will be considered in the next section), the other NSW decisions included by Mr Lavulavu all turned on their own facts and/or legislation. For instance:
  8. It is evident, therefore, that those decisions are distinguishable from the present. They also provide testament to the High Court’s caution in Moti v R referred to in paragraph 77 above.

Is Hamzy determinative?

  1. As Mr Lavulavu places primary reliance on it, I turn now to a closer examination of the decision of Judge Whitford of the NSW District Court in Hamzy v R, ibid.
  2. On 31 October 2017, Hamzy was tried in the District Court before a jury for an offence contrary to ss 307.1(1) in conjunction with s 11.2A of the Criminal Code (C’th) (the Code). The charge, as particularised in the indictment on which he was arraigned prior to the commencement of that trial, was, relevantly, that Hamzy and Gianmarco Romolo jointly imported a commercial quantity of methamphetamine. The trial judge discharged the jury after it failed to reach a unanimous verdict. The Crown then proceeded to retry Hamzy on a new indictment. The new indictment charged Hamzy under the same provisions of the Criminal Code as in his first trial but was amended to allege that he and Romolo, “and unknown others” imported a commercial quantity of methamphetamine. Subsequently, the prosecution advised that it intended to rely on a statutory alternative provision under s.313.3 of the Criminal Code - a standard import commercial quantity of border-controlled drug charge contrary to s.307.1(1) of the Code – “if required”.
  3. When the matter was called on for trial, Hamzy applied for a permanent stay of the proceedings. In summary, he contended that any retrial on the amended indictment would constitute an abuse of process and would otherwise cause impermissible unfairness warranting a permanent stay. In addition, it was argued that it would be an abuse of process to conduct the trial with the prosecution attempting to change its case so as to allege a different drug importation offence or to suggest that Mr Hamzy could be convicted without the need to establish that he was acting jointly with Romolo and/or others.
  4. His Honour noted that in relation to Romolo, the Court of Criminal Appeal had declined to order a retrial despite the Crown contending that it would only change the “nature of the charge” but adduce the same evidence on a retrial. In rejecting the submission in support of a retrial, Macfarlan JA stated[58] that changing the “nature of the charge” in a way that overcame the evidentiary defects “in this case would necessitate the Indictment being amended either to charge a different drug importation offence, or to delete the reference to Hamzy and therefore leave the charge as one that the applicant committed the offence jointly with an unknown person or persons” which would constitute a substantial and impermissible amendment to the indictment.
  5. It appeared to be common ground that the evidence in Hamzy’s proposed retrial would be the same as the evidence adduced at his first trial. Therefore, his Honour considered it inevitable that the Court of Criminal Appeal’s reasoning in Romolo about the defects in the Crown’s evidence on the existence of an agreement applied with equal force to Hamzy’s case.
  6. Much of the Judge’s reasoning has been recited above in the section on legal principles. It suffices to summarise the bases for the decision as follows. By inserting into the indictment the additional element of “unknown persons” as additional parties to the agreement alleged between Hamzy and Romolo, the Prosecution sought to overcome a fundamental defect in its case against both accused, namely, the nomination of “only one person with whom the [accused] was in agreement to commit that offence”. The asserted statutory alternative charge also sought to overcome that fundamental defect, but in a different way. By the proposed formulation of the alternative count, the Crown sought to propound a case that avoided altogether any reliance upon joint commission and the notion of agreement or understanding at the heart of the original formulation. His Honour held that both the amendment to the indictment and the proposed “alternative” charge constituted a substantially different Crown case to that put to the jury in Hamzy’s first trial. The amendments to the indictment required the Crown at a retrial to do more than simply qualify the evidence adduced at the first trial but not disturb the “basic factual premises that underlie the Crown case”. The change to the Crown’s case was considered far more radical. In those circumstances, his Honour considered that a retrial on the amended indictment would allow the Crown to impermissibly “patch up” or “supplement or reconstruct its case”.
  7. Ultimately, the Judge found that it was impossible for the Crown to prove an essential element of the reformulated charge in relation to the element of “unknown persons”, and that the alternative count was a completely different offence to that on which Hamzy was originally tried. In those circumstances, his Honour found that the retrial would be an abuse of process and he ordered a permanent stay of the proceedings.
  8. It is abundantly clear that the facts and circumstances in Hamzy’s case are highly distinguishable from Mr Lavulavu’s. There is no suggestion here that on the evidence adduced at the first trial, it will be impossible for the Prosecution to prove an essential element of the charges against Mr Lavulavu in their amended form. The Court of Appeal has also expressed a view about the ability of that evidence to support a conviction for the offence under s.164 which sets Mr Lavulavu’s case apart from Hamzy. Further, there is no suggestion here of any alternative or different charge being alleged in the amended indictment.
  9. For those reasons, I find that the decision in Hamzy does not support Mr Lavulavu’s application.

Do the amendments allow the Prosecution to ‘patch up’ its case?

  1. It may readily be accepted from the authorities referred to in Hamzy that the Court may exercise its discretion to stay criminal proceedings as an abuse of process where amendments to an indictment or the manner in which the Prosecution proposes to conduct any retrial amount to it ‘closing the gaps’ or ‘patching up’ its case from the first trial. Whether the changes proposed require the Court to exercise its discretion will always be a matter of nature and degree, having regard, objectively, to their actual and/or likely impacts on the Defendant, the existence and extent of any unfairness occasioned thereby, and the demands of justice and fair conduct of criminal trials.
  2. Mr Lavulavu submitted that the amendments here are a reformulation and patching up of the Crown’s case, made possible by the decision of the Court of Appeal, which falls within the same category of conduct against which the Court protects as discussed in Hamzy. For the reasons stated in the preceding issue, I do not agree.
  3. When asked what he perceived to be ‘the gap’ in the Prosecution’s case from the first trial which it was purportedly now seeking to patch up, Mr Lavulavu said, in terms, that the Prosecution must know that there were weaknesses in its case because “why else would they have amended the indictment rather than proceed with the original?”. Unfortunately, Mr Lavulavu’s question did not answer the question.
  4. The actual answer has been explained above. In my view, the invocation of s.8 as the appropriate basis for alleging accessorial liability, does not constitute a gap or weakness in the Prosecution’s case at the first trial. Had Cooper J not reverted to agency as the basis upon which the Prosecution sought to prove its case against Mr Lavulavu, it was open to his Honour, subject possibly to an application then to amend the indictment to align with the evidence assessed on the appropriate legal principles, to find that s.8 provided the appropriate legal basis for liability.
  5. However, as recorded in the original verdict, and on appeal, that was not how the Prosecution conducted its case. Then again, the controversy (agency vs abetment) had not been decided by the Court of Appeal in any previous case. Therefore, the Court of Appeal’s decision here merely served to clarify the proper basis upon which the evidence led by the Prosecution at the first trial ought to have been characterised for the purpose of determining whether the offence as against Mr Lavulavu under s.164 had been proven. That is all the present amendments, or those about which Mr Lavulavu is most concerned, seek to do.
  6. Accordingly, as Mr Lavulavu has not identified any actual gap or weakness in the Prosecution’s original case and, on this application, the Prosecution have not indicated an intention to call any different evidence in relation to Mr Lavulavu’s alleged involvement in the offending, I consider that the amendments do not constitute an attempt to impermissibly patch up or reconstruct the Prosecution case on retrial.

Do the amendments represent “severe prejudice” to Mr Lavulavu?

  1. In light of the above findings, the absence of any identified specific prejudice, and the deferral of the commencement of the retrial, I am not satisfied that the amendments to the indictment will cause Mr Lavulavu any prejudice or oppression such that he cannot receive a fair trial or that it would be unfair for him to be retried.

Has Mr Lavulavu been provided sufficient particulars of his alleged accessorial liability, and if not, whether any unfairness occasioned thereby can only be remedied by staying the prosecution against him?

  1. Clause 11 of the Constitution requires, relevantly, that an indictment clearly state the offence charged and the grounds for the charge.
  2. Mr Lavulavu complains that he has not been provided with proper particulars of the amended allegation that he “indirectly encouraged” Mrs Lavulavu in making the impugned grant applications to the Ministry. I agree. As the amended indictment currently stands, it is unclear what is meant by “indirectly encouraged”. As such, the grounds for the charge are not clearly stated. Mr Lavulavu should not be left to have to guess, even with his intimate knowledge of the evidence called at the first trial, what the Prosecution intends by this aspect of the amendments or the evidence to be called in respect of them at the retrial. That is an element of unfairness which, in my view, would have impermissibly and adversely affected Mr Lavulavu’s ability to understand the charges and prepare for and present his defence at the retrial, were it still to commence some three weeks after the amended indictment was filed.
  3. During his oral submissions, Mr Lutui was asked what was meant by the amended particular that Mr Lavulavu “indirectly encouraged” Mrs Lavulavu. Mr Lutui explained that the Prosecution would be relying on the same evidence from the first trial that Mr Lavulavu allegedly gave directions to relevant UTRI administrative staff in relation to the compilation of the allegedly false student lists which formed the basis of the grant applications submitted to the Ministry. Mr Lutui conceded that that clarification could have been better articulated in the particulars to the charges or by way of a summary of facts in respect of the amended indictment. He agreed to file and serve the latter.
  4. Upon that concession and necessary adjournment of the retrial to some five months hence, I consider that this unfairness can be ameliorated by measures other than a permanent stay of the proceedings.

Conclusion on abuse of process

  1. For those reasons, and to sum up, I have arrived at the following conclusions in accordance with the relevant considerations provided by the authorities cited above.
  2. The amendments to the indictment, and the Prosecution’s intended case for the retrial, do not constitute a new charge or case. They amount to no more than a precise and appropriate characterisation of the evidence in relation to Mr Lavulavu’s alleged role and involvement in the same offence for which he was originally tried.
  3. The amendments are consistent with the Crown’s ability to remould its case on the retrial, provided it retains the basic factual premises that underlie its case, which, Mr Lutui has assured the Court, the Prosecution intends to do.
  4. The amendments do not constitute an attempt by the Prosecution to reconstruct or “patch up” its case for the retrial.
  5. The amendments do not represent a departure by the Prosecution from considered decisions competently made.
  6. The charges are serious and there is a powerful public interest in ensuring that they are tried properly, fairly and according to law.
  7. Even if Mr Lavulavu advanced his case in terms of the principle from Hemmings as discussed in Booker, I would not be prepared to find that the amendments to the indictment place him in a worse position than he had been at the original trial. Firstly, he is facing the same evidence as to his alleged role. Secondly, even though an accessory to an offence actually committed is liable to the same punishment as the principal offender, it does not automatically mean that the accessory, if convicted, will receive the same sentence as the principal offender: Valikoula v R [2021] TOCA 5. There are many factors to be considered starting with differing levels of role and culpability. Rarely will an abettor be regarded as more culpable than the principal offender.
  8. The amendments to the indictment do not constitute a deliberate or improper manipulation or misuse by the Prosecution of the criminal process so as to take unfair advantage of a technicality or Mr Lavulavu.
  9. There is no suggestion that the Prosecution case suffers from some incurable vice, such that its case against Mr Lavulavu is doomed to fail.
  10. Mr Lavulavu has not demonstrated any fundamental defect which goes to the root of the retrial of such a nature that nothing that a trial judge can do in the conduct of the trial could relieve against its unfair consequences such as a direction for the Prosecution to file and serve a summary of facts in respect of the amended indictment.
  11. The background, evidence, authorities and submissions presented on the application do not establish that Mr Lavulavu cannot receive a fair trial or that it would be unfair for him to be re-tried. Continuation of the proceedings will not involve unacceptable injustice, unfairness, or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
  12. On the bases advanced by Mr Lavulavu, to stay this prosecution would, in my view, diminish public confidence in the administration of justice.
  13. Accordingly, the application, based on alleged abuse of process, fails.

Clause 12

  1. During his oral submissions, Mr Lavulavu acknowledged that I had already determined his clause 12 argument in my ruling on 24 November 2022,[59] that he had not appealed that ruling and that, in the absence of any material change of circumstances or argument, his repeat of the same argument in this application was arguably itself an abuse of process.[60] In those circumstances, Mr Lavulavu abandoned this ground.
  2. For completeness, and for much the same reasons as given in the November 2022 ruling, I respectfully agree with Hunter J’s interpretation in Kulanoa.
  3. It follows, therefore, that Mr Lavulavu’s contention that the power to order a retrial provided by ss 17(2) of the Court of Appeal Act is invalid, must be rejected.

Delay in filing amended indictment

  1. Any difficulties complained of by Mr Lavulavu in the amended indictment being filed so close to the then listed retrial date have been ameliorated by the vacating of that trial date and relisting to commence on 16 October 2023 (i.e. in five months’ time). In the absence of any other complaints by Mr Lavulavu about delay in the proceedings, or any specific prejudice occasioned to his ability to prepare for the retrial, this ground also fails.

Result

  1. For those reasons, Mr Lavulavu’s application to strike out the prosecution against him as an abuse of process is refused.
  2. The Prosecution is to file and serve a summary of facts in respect of the amended indictment by 2 June 2023.

NUKU’ALOFA
M. H. Whitten KC
19 May 2023
LORD CHIEF JUSTICE

[1] Comprising Hansen, De Jersey, Harrison and Heath JJA.

[2] Their Honours recorded that “This is what it recorded in the trial transcript, which while generally accurate, is accepted to require significant editing. ...”

[3] Mr Lavulavu endeavoured to disavow himself from those submissions by suggesting that his counsel had not explained to him the difference between a directed acquittal and an order for retrial.

[4] Clause 31A of the Constitution.

[5] CR 21 of 2023

[6] In which only 8 of 41 facts were either wholly or partly disputed.

[7] [1995] UKHL 18; [1996] AC 487 (HL)

[8] [2011] HCA 50; 245 CLR 456

[9] [2018] NSWDC 7 at [41] – [99]

[10] (2006) NSWCCA 415

[11] [2019] NSWCCA 294

[12] [2021] NSWDC 321

[13] [2012] NSWDC 96

[14] [2011] NSWSC 1038

[15] [1908-1959] Tonga LR 104 at [15].

[16] Citing Moti v R [2011] HCA 50; (2011) 245 CLR 456 at [11]. See also Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17, referred to in Hamzy, ibid.

[17] R v Munro (1992) 97 Cr App Rep 183, CA

[18] Cited in Police v Sikuea [1996] TOMC 1 referring to on Department of Social Welfare v. Stewart [1990] 1 NZLR 697 per Wylie, J.

[19] Citing Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520. See also Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at 264-265.

[20] At 470–1, 473–6, 478–82; referred to in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, where the abuse complained of was said to be undue delay.

[21] Citing Halsbury's Laws of England, 4th edition, vol.11 (1), para 786.

[22] Citing Fox v A-G [2002] NZCA 158; [2002] 3 NZLR 62 at p.72; R v Horseferry Road Magistrates' Court, ex p Bennett [1993] UKHL 10; [1994] 1 AC 42 at 74. See also UBS AG v Tyne [2018] HCA 45; 92 ALJR 968 at [1], referred to in Hamzy, ibid.

[23] Referred to in Hamzy, ibid, at [15].

[24] Citing Re Cooney (1987) 31 A Crim R 256 at 263–4. Referred to in Dalgety v Crown [2012] TOSC 40.

[25] At 583, citing Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 102, 106; R v Sang [1979] UKHL 3; [1980] AC 402 at 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24 at 31, 32.

[26] Referred to in Hamzy, ibid, at [12].

[27] Citing R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [23]; Hermanus v R [2015] VSCA 2; (2015) 44 VR 335, 341–2 [39]; Jago, ibid, at 31, 58–61, 76; Tony Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 32 at [248].

[28] [2004] HCA 10; (2004) 223 CLR 122 at [135]; compare at [96] per Gummow and Callinan JJ.

[29] Referred to in Hamzy, ibid, at [13].

[30] Referred to in Hamzy, ibid, at [14].

[31] R v Beckford [1996] 1 Cr App Rep 94.

[32] Halsbury's Laws of England, Criminal Procedure (Volume 27 (2021), paras 1–442; Volume 28 (2021), paras 443–938), 9. Trial on Indictment, (3) Form of Indictment, (v) Abuse of Process.

[33] Rex v Derby Crown Court ex parte Brooks, ibid; A-G's Reference (No 1 of 1990) [1992] QB 630; R v Smolinski [2004] EWCA Crim 1270; R v F(S) [2011] EWCA Crim 1844, [2012] 1 All ER 565.

[34] R v Bow Street Metropolitan Stipendiary Magistrate, ex p DPP (1992) 95 Cr App Rep 9, DC; A-G v MGN Ltd [1997] 1 All ER 456, DC.

[35] R v Bloomfield [2010] EWCA Crim 2327; [1997] 1 Cr App Rep 135, CA; R (on the application of Guest) v DPP [2009] EWHC 640; [2009] All ER (D) 53 (Mar).

[36] Rex v Derby Crown Court ex parte Brooks, ibid; R v Brentford Justices, ex p Wong [1981] QB 445; R v Schlesinger [1995] Crim LR 137, CA; R v Piggott, R v Litwin [1999] 2 Cr App Rep 320, CA. Cf R v Rotherham Justices, ex p Brough [1991] Crim LR 522, DC; Prosecution Appeal (No 25 of 2008), R v Mattu [2010] Crim LR 229, [2009] All ER (D) 183 (Jul).

[37] R v Syed [2018] All ER (D) 84 (Dec).

[38] E.g. Warren v A-G for Jersey [2011] UKPC 10, [2012] 1 AC 22, [2011] 2 All ER 513

[39] E.g. DPP v Fell [2013] All ER (D) 255 (Jan); R v PR [2019] All ER (D) 110 (Jul).

[40] Gilham v R [2012] NSWCCA 131.

[41] R v Anderson (1991) 53 A Crim R 421.

[42] Lavulavu v R [2021] TOSC 111 at [61].

[43] Conspiracy

[44] [33] to [35]

[45] Procedure on indictment.

[46] No one shall be tried on any charge but that which appears in the indictment, summons or warrant for which he is being brought to trial, subject to exceptions which are not relevant to this application.

[47] The judges shall have power to direct the form of indictments to control the procedure of the lower courts, and to make rules of procedure.

[48] [83]

[49] 5.1.11

[50] By comparison, the term of the order referred to in Part 5 of the New Zealand Criminal Procedure Act 2011 is a “retrial”. The same term is used in the UK Criminal Appeal Act discussed in the next issue.

[51] At [17] as recited at paragraph 29 hereof.

[52] Where his Honour stated:

“It had not been included in counsel's original submissions and the Crown, therefore, has not had any opportunity to respond to it. In any event, no authority was cited for the proposition that the Civil Law Act has application in criminal proceedings. The suggestion seems quite anomalous with even its very title.”

[53] For example, see Lasike v Rex [2012] TOCA 1; Kaufusi v Rex [2014] TOCA 17; R v Hausia [2019] TOCA 22; Fanua v Rex [2020] TOCA 5; Attorney General v Ikamanu [2021] TOCA 3

[54] Applied in Seiler v Kingdom of Tonga [1992] Tonga LR 58; Tu'ivakano v Police Commissioner [2021] TOSC 170.

[55] Referring to R v Hemmings & Others [2000] 1 Cr App R 360,

[56] Even if committal proceedings have not taken place, or if a magistrate has found during the committal proceedings that there is insufficient evidence to put a defendant on trial, the Director of Public Prosecutions may file a special information (known also as an indictment), called an ex officio information, against a person and that person must then stand trial in the normal manner in the District or Supreme Court.

[57] Citing Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at [2]. In Tonga, the same proposition was doubted in Attorney General v Xi Yun Qian [2019] TOCA 20 citing R v Davis [1982] 1 NZLR 584 at 589.

[58] at [41]

[59] Of which paragraph 17 was recited in Mr Lavulavu’s written submissions on this application.

[60] Lavulavu v R [2022] TOCA 17 at [30]. See also Attorney General v Xi Yun Qian [2019] TOCA 20 at [55] citing Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529; Bryant v Collector of Customs [1984] 1 NZLR 280; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251).

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