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Cox v R [2021] TOCA 23; AC 25 of 2021 (29 October 2021)

IN THE COURT OF APPEAL TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

AC 25 of 2021

(CR 153 & 157 of 2021)

BETWEEN:

[1] IAN ROBIN COX

[2] BRENDA COX

Applicants / Appellants

-v-

REX

Respondent

Application for leave to appeal against refusal of bail

RULING

BEFORE: PRESIDENT WHITTEN QC LCJ

To: Ms H.C. Stuart of counsel instructed by Ms L. Tonga for the Applicants
Mr J. Lutui DPP for the Respondent
Date of application: 20 October 2021
Date of final filings: 28 October 2021
Date of ruling: 29 October 2021

Introduction

1. This is an application for leave to appeal, and if leave is granted, an appeal against the decision of Cooper J in the Supreme Court at Vava'u on 8 October 2021 whereby his Honour refused to extend the applicants’ bail as earlier granted by the Magistrates Court and remanded them in custody pending their trial, which has been tentatively listed to commence in May 2022.

Background

2. On 2 August 2021, the applicants were charged with, relevantly, possession of a substantial quantity of cocaine.
3. In summary, the Crown alleges that:
   • (a) a raft carrying ‘bricks’ of cocaine washed up on ‘Otualea beach in Vava’u;
   • (b) in the week of 19 July 2021, the cocaine was found by Nomani Naeata who then distributed the bricks to various individuals including Andrew Motuliki; and
   • (c) Motuliki gave some of the cocaine to the applicants.
4. On 19 August 2021, the applicants were committed by the Magistrates Court to stand trial in the Supreme Court. The Prosecution did not oppose bail then being granted. The Magistrate granted the applicants bail on conditions, including a prohibition against leaving Vava'u, reporting, a curfew and provision of sureties.
5. On 28 September 2021, Mr Cox applied for a variation of his bail conditions to permit him to travel to Tongatapu between 25 October and 20 November 2021 in order to carry out work duties as the sole factory-trained Yamaha agent under contract with EM Jones Ltd in Tonga. The Crown consented to the variation.

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