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Rex v 'Unga [2011] TOCA 14; AC 1 of 2011 (15 April 2011)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY APPEAL NO. AC 1 of 2011

BETWEEN:

R E X
Appellant

AND:

KAPUANA 'UNGA

First Respondent

AND:

NAOMI TAULAFO
Second Respondent

Coram: Burchett J

Salmon J

Moore J

Counsel: Mr. Kefu for the Appellant

Mr. Niu S.C. for the First Respondent

DETERMINED BY CONSENT ON WRITTEN SUBMISSIONS

Date of Judgment: 15 April, 2011

JUDGMENT OF THE COURT

[1] The parties to this appeal are, first, the Crown (the Appellant); secondly, the accused in a trial before Shuster J sitting without a jury (the First Respondent, who was alleged to have committed bodily harm while being taken into custody on the Second Respondent, a police officer); and thirdly the Second Respondent. The trial ended when his Honour ordered each of the Respondents to be "bound over to keep the peace to all manner of persons", as regards the First Respondent in the sum of $700 for a period of 12 months, and as regards the Second Respondent in the sum of $200 for a period of 6 months, and dismissed the charge against the First Respondent.

[2] The Crown appeals, its arguments being fully supported by the First Respondent. Although counsel had submitted that the Court lacked jurisdiction to make the binding over orders in the circumstances, no reasons were given to justify the decision, except what may be gleaned from the language of the orders. The document drawn up and signed by the judge is in the following terms:

BEFORE THE HON. JUSTICE SHUSTER

HAVING HEARD all the evidence in this case from the prosecution, and from the defendant in person on oath, and having seen the photographs of the injuries to the defendant whilst she was in Police custody I have decided that in the interest of Justice that this case can be best dealt with by Binding over the defendant, and the victim to keep the peace for such period as I consider necessary, for their future conduct.

HAVING HEARD from both defence Counsel, and the Prosecution, the periods of the Bind Over's are as follows:-

IT IS ORDERED THAT:

1. KAPUANA 'UNGA is bound over to keep the peace to all manner of persons in the sum of $700 for a period of 12 months.

2. NAOMI TAULAFO (a police officer) is bound over to keep the peace to all manner of persons in the sum of $200 for a period of 6 months.