Faletau v R [2024] TOSC 76; AM 11 of 2024 (16 September 2024)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY
AM 11 of 2024

BETWEEN:
TEAU ‘I MO’UNGA FALETAU
-Appellant

AND:
REX
-Respondent

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr J. Lutui – Director of Public Prosecutions for the Crown
Ms A. Kafoa for the Defendant
Date: 16 September 2024

1. BACKGROUND

1. This is an appeal against the ruling of Magistrate Kaufusi refusing a bail application of the Appellant on the 26th of July 2024. It is suggested that the learned Magistrate erred in fact and in law by holding that he did not have authority to vary his own decision to consider a renewed application for bail.
2. It is therefore necessary to give some general guidance as to the way in which a bail application ought to be considered by a court, be it by a Magistrate or a Supreme Court Judge.
3. I have not been provided with any authority relating to the power of a Magistrate to reconsider an earlier application to refuse bail, and so it is necessary to approach this matter on first principles.
   2. BAIL
4. The Bail Act by Section 4(1) provides that an applicant must be granted bail unless the court or a police officer (in the case of a person arrested those) is satisfied that –
   1. there are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will—
      1. Fail to surrender to custody or
      2. Commit an offence while on bail or
      100. Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person
   2. he should be kept in custody for his own protection or welfare
   3. The case has been adjourned for inquiries which it would be impracticable to make unless the defendant is kept in custody: or
   4. he is already in custody pursuant to a sentence of the court or
   5. he has already been released on bail in connection with the present proceedings and has been arrested pursuant to section 9 of this act,
      
5. It follows in my judgment that there is right to bail unless any of the statutory exceptions apply. But of course, whether they do apply in the case before the decision maker depends on him or her applying their mind to the facts as presented.
6. I have been provided with a number of authorities or rather references to authorities which do not engage with this central point but deal with the circumstances which may or may not pertain in bail applications as respecting the detained person in question.
7. I say nothing about the way in which those matters were dealt with but confine myself to a recitation of the broad principles of whether a Magistrate can reconsider his earlier decision to refuse bail.
8. Since the liberty of the subject is a fundamental human right guaranteed by the constitution, I hold that the Magistrate or other decision maker i.e. a Judge of the Supreme Court when faced with an application to revisit an earlier ruling must do so.
9. Plainly, if circumstances have changed, and even if circumstances remained broadly the same, the decision maker retains the right to change his or her mind. If they take the view for example that the statutory conditions no longer apply and that in the exercise of their discretion their earlier ruling should be changed.
10. This is not to say that it is necessary to embark on a detailed revisiting of an earlier decision, it may will be apparent in most cases that nothing of substantial nature has changed, and that the application can be considered expeditiously and dealt with briefly.
11. It is submitted that the practice for one Magistrate to refuse to hear an application for bail made by another Magistrate, in my judgment is incorrect. A detained person has an unfettered right to apply for bail and if one Magistrate comes to an adverse conclusion, that should not of itself disentitle another Magistrate from coming to a different conclusion.
12. This is because it is incumbent on the decision maker to consider the terms of the statute afresh and come to their own view. This is not to say that the views of another magistrate may not have a powerful indeed, often a determinative importance. I can well see that in most cases unless there are strong or indeed compelling reason to come to a different view, the overwhelming likelihood is that such a Magistrate is likely to deal with a renewed application expeditiously. That concludes my findings as to the power of a Magistrate or a Judge to reconsider a bail application.
    
    100. DISCUSSION
13. I now turn to the somewhat convoluted facts of the matter now before me.
14. The Defendant faces two matters CR229/24 and CR117/24. The history of the present appeal is not easy to follow but it seems that on the 28th of May 2024 the Appellant appealed to the Supreme Court against the decision of the Magistrate made to refuse bail made on the 24th of May. That appeal was subsequently withdrawn, and a fresh application lodged. This application was refused, and it is against this application that the present appeal is made.
15. The Defendant faces another serious matter see CR 117/24. That application made in the Supreme Court was refused by Cooper J. It therefore follows that irrespective of the outcome of the present application the Appellant will remain in custody.
16. The basis for the current application before me is that the Magistrate held that he does not have authority to vary his own judgment. As I have previously explained this is incorrect.
17. I am unclear from what I have seen whether the learned magistrate did in fact decline to consider the application, or that he did so and refused it.
18. If the former, then for the reasons I have already indicated that is incorrect and he must consider the application, having applied his mind to the relevant matters.
    
    4. FINAL RESULT
19. I desire to make plain that any consideration of whether to grant or refuse bail is entirely a matter for the Magistrate.
20. I simply add that although there is no hierarchy of exceptions in the statute and it is a matter of common sense that the more serious the allegation (and this is very serious allegation) the greater the risk both of absconding and interfering with prosecution witnesses.
21. I say no more about the facts of this case and revert the application to the original magistrate or any other magistrate to consider whether the renewed application for bail should succeed or fail.
22. The Appellant is to remain in custody whilst this matter is remitted back to the Magistrate’s Court for consideration of his bail application.
    

NUKU’ALOFA HON. MALCOLM BISHOP KC
16 September 2024 LORD CHIEF JUSTICE