Kivalu v R [2024] TOSC 82; AM 12 of 2024 (18 October 2024)

BETWEEN:
UINIKONI KIVALU
-Appellant

AND:
REX
-Respondent

RULING

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr J Lutui – Director of Public Prosecutions for the Crown
Mr A Fusimalohi for the Defendant
Date: 18 October 2024

BACKGROUND

1. This is an appeal from a decision of Senior Magistrate Kaufusi whereby he refused a bail application by the Appellant.
2. The Appellant is charged with engaging with others to unlawfully import illicit drugs contrary to section4(1)(b) (iv) of the Illicit Drugs Control Act, in that without lawful excuse he knowingly engaged with Sili Ki ‘Asa Tonga to unlawfully import approximately 2687.43 grams of illicit drugs.
3. The Appellant is a serving customs officer, currently aged 45, married with 2 teenage boys. The allegation if proved constitutes very serious misconduct by a public official in the course of his employment. This would inevitably result in a substantial custodial sentence.
   

RELEVANT LEGISLATION

4. It is necessary first to consider the statutory framework in relation to bail which is stated Section 4 of the Bail Act as follows:

“ (1) A person who is arrested or charged with an offence punishable with imprisonment shall be granted bail unless the Court, or a police officer (in the case of a person arrested) is satisfied that —

(i) there are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will —

(a) fail to surrender to custody;

(b) commit an offence while on bail; or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(ii) he should be kept in custody for his own protection or welfare;

(iii) the case has been adjourned for inquiries which it would be impracticable to make unless the defendant is kept in custody;

(iv) he is already in custody pursuant to a sentence of a Court; or

(v) he has already been released on bail in connection with the present proceedings and has been arrested pursuant to section 9 of this Act.

(2) In taking the decisions required by subsection (1), the Court or police officer shall have regard to all the relevant circumstances and in particular —

(a) the nature or seriousness of the offence (and the probable method of dealing with the defendant for it);

(b) the character, antecedents, associations and community ties of the defendant;

(c) the defendant’s record in respect of the fulfilment of obligations under previous grants of bail;

(d) the strength of the evidence of his having committed the offence.

(3) A person who is arrested or charged with any offence not punishable with imprisonment shall be granted bail unless the Court, or police officer (in the case of a person arrested) is satisfied that —

(i) he has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;

(ii) he should be kept in custody for his own protection and welfare; or

(iii) he is already in custody pursuant to a sentence of a Court.

(4) In determining the question of bail under this section, the Court need not apply the strict rules of evidence, and an informal enquiry by the Court may suffice.4

(5) A person charged with murder or treason may be granted bail only by the Supreme Court or Court of Appeal.”

DISCUSSION

5. It is settled law here in Tonga that an accused has a right to bail unless the court is satisfied that any of the statutory exceptions apply.
6. It is beyond argument that the allegations in the current matter are serious indeed very serious that is one of the matters which the court is enjoined by in Section 4(2) of the Bail Act to have regard to together with all other relevant circumstances, these include by subsection (2)(d) the strength of the evidence of his having committed the offence.
7. How is the judge or magistrate to undertake this exercise? Given the practicalities it would be inappropriate in most cases to conduct a formal hearing including the calling of evidence on oath for determination although that may indeed be the only way of resolving the matter in some cases on the whole only an informal inquiry will be possible as has held in R v Moles [1981] Crim .L.R. 170.
8. What must be guaranteed is that whatever procedure is adopted the overall undertaking must be fair. This means that in determining the strength of the evidence, the quality of the material before it whether by sworn evidence, documentary proof in matters of record hearsay assertion or submissions and attach such weight to each piece of information as it considers appropriate.
9. I gratefully adopt the formulation of my learned and distinguished predecessor Lord Chief Justice Whitten KC in Cox & Cox v Rex AC 25 of 2021:

“the ultimate obligation of the court is to evaluate the information in the light of the serious potential consequences to the defendant and to weigh up all the relevant circumstances of the case”

10. Plainly, more than suspicion is necessary but that is not to say that the material relied on must attain the status of such evidence as to render the accused guilt beyond reasonable doubt if it proceeded to trial.
11. This is particularly so, in the initial stages of an investigation when inquiries ongoing and might reasonably be said to be frustrated if the Accused were to be at large.
12. Applying these principles to the present case it simply amounts to this: the appellant had been in telephonic communication with two suspects Lutui and Mafi also charged with conspiring with others to import methamphetamine, both charged with importing precisely the same amount of illicit drugs.
13. For the purposes of this appeal I find that the learned magistrate was entitled to hold that there were substantial grounds for believing that this accused was involved with the other accused in unlawfully importing illicit drugs. It would be highly unusual if precisely the same amount of drugs on the same day was imported independently of each other.
14. I must decide this case on the evidence that is apparent before me and as I understand it apart from that there is no further material adduced by the prosecution to substantiate their submission that bail should be refused because of the risk that the applicant may interfere with witnesses and obstruct justice bearing in mind that police investigations at that time were ongoing.
15. I'm now informed that the investigations are complete, and it has been established that there were indeed communications between the three individuals I have referred to, but the content of such telephone calls are of course at best ambiguous.
16. I suspect that they may well be concerned with these serious criminal matters but suspicion is not enough, and while I would not go so far as to submit that in all cases there must be evidence which stands up to scrutiny on a par with that which is acceptable in a criminal trial, and which by its nature is compelling, nevertheless an overall evaluation of the state of the investigation must be undertaken in an unbiased and open way by the magistrate or judge concerned.
17. Here it may well be the case that, when the matter was before the Magistrate because of the incomplete nature of the police investigation there was a real risk of the Appellant seeking to interfere with witnesses although against that it has to be said that his unblemished character over many years as a responsible public officer might militate against that.
18. A balancing exercise must be undertaken with care and in obedience to the statute which accords a right of bail unless the exceptions referred to in statue therein are established.
19. I am in the fortunate position that the evidential basis is not in dispute. It is accepted that there was behavior by the Appellant that would have raised a strong position in opposition to bail when the matter was before the Magistrate.
20. I have concluded that although it may well be the case that at the time the bail application was refused, there was an appreciable risk of interfering with the prosecution’s investigation.
21. However now that those investigations have been completed it would not be realistically possible for the accused now to unscramble the telephone calls which are a matter of record.
    

FINAL RESULT

22. This means in my view that the balance narrowly shifts decisively in favour of granting bail and I do so.
23. There must however be strict conditions, and the order of the magistrate must be quashed.
24. The Accused is admitted to Bail at the Magistrate Court under the following conditions:
    1. He must not commit any offence punishable by imprisonment
    2. He must reside solely at his current address
    100. He must surrender his passport forthwith his name to the Court.
    4. He must be added to the no-fly list
    5. He must report to his local police station twice a week during business hours, to be agreed between him and the police station in question
    6. A curfew is imposed between 6:00 PM and 6:00 AM where he must be at his residence.
25. On those conditions being complied with, bail is granted to the Appellant.
    

NUKU’ALOFA HON. MALCOLM BISHOP KC
18 October 2024 LORD CHIEF JUSTICE