IN THE COURT OF APPEAL TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO AC 17/2004

BETWEEN:

MATAIASI TAUFA
Appellant

AND:

REX
Respondent

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 26 January 2005.

Counsel: Appellant: Mr Niu
Respondent: Ms Simiki

RESERVED RULING ON APPLICATION FOR BAIL

This was an application for stay of sentence and bail pending appeal by the appellant, Mataiasi Taufa, who was convicted of 2 counts of grievous bodily harm and 1 count of bodily harm (all of which occurred on the same occasion) and sentenced by the trial Judge, McElrea J, on 19 October 2004 to 4½ years imprisonment concurrently on each of the counts of grievous bodily harm, the final 18 months of which were suspended for 3 years on the following conditions:

1.	He will be under the supervision of a Probation Officer.
2.	He will live and work where directed by his Probation Officer.
3.	He is not to associate in any way with the victim Kalatiola.
4.	He is to attend an anger management course as arranged by his Probation Officer.
5.	He is to follow all directions of Dr Puloka or such other Medical Officer as Dr Puloka directs.

On the count of bodily harm he was sentenced to 2 years imprisonment, again concurrent.

The appellant’s grounds of appeal are as follows:

The Appellant will pray that that sentence be varied as follows:

The Appellant is sentenced to 4 years imprisonment but suspended for 3 years and, during the period of suspension,

(a)	he is to comply with all directions of medication and treatment which the doctor in charge of the psychiatric ward at Vaiola hospital shall direct;
(b)	he is to attend and carry out any programme of treatment which the Salvation Army shall see fit to prescribe for him; and

Upon the following grounds:

1.	The Appellant was and is suffering from a mental condition called "intermittent explosive disorder". It is caused by a low level of a substance in the brain called "serotonin" which is due to a disease of the mind. When a person has a low level of serotonin, he manifests a failure to resist aggressive impulses, resulting in serious assaults or destruction of property. The degree of aggressiveness is usually grossly out of proportion to any provocation (or precipitating psychological stressor) which sparks the explosive disorder.

2.	Dr Puloka, who examined the Appellant stated that the Appellant was, at the time that he attacked and slashed the 3 victims with the machete, was not in control of the situation whatever he did.

3.	The Appellant inflicted 5 deep cuts on his mother in law (her left hand and little finger, the right side of her neck and right check, her right shoulder blade and two on the back of her head). he inflicted 9 deep cuts to his wife's body (three on her hands, one on her forehead, one on the back of her head, and four around the back of her head). He inflicted only one cut, which was not deep on the right shoulder of a boy who happened to be there at the time.
4.	Dr Puloka had prescribed Prozac, a medication which raised the level of serotonin, for the Appellant on 14/2/2002 but they were lost by the prison officers for several days, during which the Appellant had no medication, up to the 23/2/2002, when he suffered from the intermittent explosive disorder and slashed the victims as described above.

5.	Having found that the mental condition of the Appellant was such that he was not legally insane, but that it would be very relevant for the purpose of sentencing him, the Learned Judge erred when he imposed the imprisonment sentence of 4 years, because he thereby held that the Appellant was responsible for his action whereas he was not. The Appellant was, as Dr Puloka correctly stated, overwhelmed, such that he could not resist the impulse caused by the low level serotonin (over which he had no control).

6.	The sentence imposed is unjust and inappropriate in that:

(a)	the Appellant is being punished for something he did not deliberately or intentionally do or over which he had any control;

(b)	the prison sentence will not serve any useful purpose for him or for the public because he is a special case of a disease of the mind.

(c)	the Appellant needs the help and care of his wife, who has stood by him before the incident as well as afterwards up to now.

(d)	he needs to be helped by programmes of the Salvation Army for persons with alcohol, drug and anger problems, as well as the ready access to the medication of Dr Puloka.

(e)	the Appellant and his wife now have 3 young children who need him, and he needs them.

All 3 sentences were ordered to be cumulative on the sentence of 6 years imprisonment he was then serving for robbery, which has since been completed on 4 December 2004.

Under section 26(2) of the Court of Appeal Act (Cap 9) it is provided:

(2) The Court of Appeal may, if it sees fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal …

It was agreed by Counsel that I should hear this application sitting as a single Judge of the Court of Appeal.

Under section 4B of the Bail Act 1990 as amended:

4B. (1) A person who has been convicted of and sentenced to imprisonment for a criminal offence and who has appealed or applied for leave to appeal against that conviction or sentence shall be granted bail if the Court is satisfied that –

(a) there is a reasonable prospect of the appeal succeeding; or

(b) the appeal is unlikely to be heard before the whole or a substantial portion of the sentence has been served; and

(c) there are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will surrender to custody without committing any offence whilst on bail.

(2) In taking the decision required by subsection (1), the Court shall have regard to all the relevant circumstances and in particular –

(a) the nature of the offence and length of the sentence;

(b) the grounds of appeal;

(c) the character, antecedents, associations and community ties of the person; and

(d) his record in surrendering to custody at the trial and on other occasions.

I must emphasise that at this stage I am not hearing the appellant's appeal against sentence, which I do not wish to prejudge, and I do not wish to give any appearance of doing so.

In relation to the factors set out in section 4B(2), these were very serious offences for which the appellant was sentenced and he was given a long sentence, the length of which is not in itself being appealed. It is important that in the grounds of appeal the appellant is not seeking to contest the length of the sentence, but rather seeks to have it all suspended. These 3 sentences were all related to the intermittent explosive disorder from which the appellant suffers and he says that the 		was punished for something which he did not do deliberately or over which he had no control. In relation to the character of the appellant, I note that he is a serious offender with at least 1 serious previous conviction for robbery (which does not appear to me to be linked to his intermittent explosive disorder), for which he was serving a sentence of 6 years at the time these offences were committed. However I am pleased to note from a recent reference given for the appellant by the Superintendent of Prisons that his current behaviour has been excellent. There was no suggestion that there would be problems with the appellant surrendering to custody.

In terms of section 4B(1)(a), one condition for the granting of bail pending appeal is that the Court would have to be satisfied that there is a reasonable prospect of the appeal succeeding. The dictionary definition of “reasonable” is rational, or according to reason. When Ford J considered this section recently in Sefo & Tu'ipulotu v R ([2004] TOSC 51; CR 171-172 2004, 24 November 2004) he did not seek to define the term "a reasonable prospect". I have only been able to find 1 definition of the term, in Stroud's Judicial Dictionary (5th Ed 13th Cum Supp), where in an English case concerning whether there was a reasonable prospect of obtaining planning permission, the Court held that the correct test was whether there was a real chance of that, rather than whether it was more likely than not that permission would be granted. In the circumstances of this case also I believe that is an appropriate definition, and that is the standard I shall apply, not just that there is an arguable case, as Mr Niu submitted for the appellant.

In judging whether there is a real chance of the appellant's appeal against sentence succeeding I shall use the well-established standard that such an appeal will only succeed if the sentence was wrong in principle or manifestly excessive. But I do not think that it is appropriate in an application such as this to go into too much detail.

As has already been mentioned, the main ground of this application and appeal is that the sentence should all be suspended, as the appellant's aggressive impulses could not be resisted by him and overwhelmed his judgment. However the trial Judge, who took great care in reaching his decision to convict the appellant of these offences, in his trial judgment dated 1 October 2004 did not accept on the evidence that the appellant's emotions did in fact overwhelm his understanding (Para 2 on page 12). I also find that the trial Judge's sentencing remarks on 19 October showed that he carefully considered all the relevant factors and I am not persuaded that his decision not to suspend the first 3 years of the sentences for these very serious offences was wrong in principle or manifestly excessive. Again I consider it relevant that the trial Judge took into account the appellant's previous conviction for robbery, which it appears to me cannot be explained simply by an irresistible impulse resulting from the condition of intermittent explosive disorder.

In relation to a suspension of the sentences of imprisonment, I am alive to what has been said in R v Misinale [1999] TOCA 12; CA, but it is quite clear that the trial Judge did carefully consider the question of suspension, including the submission by Mr Niu that the whole sentence should be suspended, but rejected the latter possibility because he believed "that for reasons of public safety the prisoner needs to be kept in prison until there is a sustained period of a lack of any violence on his part", taking the view that it was too early to be able to say that the public could be safe if the appellant was released then simply on conditions. The trial Judge heard all the evidence in the trial and all the submissions and it does not appear to me that his exercise of that discretion is likely to be overturned. I am certainly not going to take a different view for the purposes of this application at this stage only some 3 months later.

Especially in this case, if the whole sentence was to be suspended, I consider that the only punishment for 3 very serious offences would be the threat of a term of imprisonment, which in the circumstances cannot be appropriate.

I must add that if what Mr Niu submitted is correct and that, if the appellant does not receive his Prozac medication to keep up his levels of serotonin, he has no control and cannot resist aggressive impulses, it appears to me most important for public safety that he is not released at present.

I am disturbed to hear from the Crown that the appellant still appears to come and go from Hu'atolitoli Prison, almost at will. If that is true, I hope the Superintendent of Prisons will take immediate steps for the safety of the public to ensure that it does not happen again. To this end I shall direct that a copy of this ruling is sent to the Minister of Police. However it is heartening to read the letter dated 27 January from the Superintendent reporting on the change in the appellant's behaviour and his current good conduct in the Prison.

For all these reasons, briefly stated, I therefore consider that this appeal does not have a reasonable prospect of succeeding.

Ground (b) of section 4B(1) is not relevant as the appeal is likely to be heard in July of this year before a substantial portion of the sentence has been served. In relation to ground (c), I am willing to accept that the appellant will surrender to custody, but in view of his history I cannot be sure that if granted bail he would not commit offences while on bail, even under onerous conditions.

There is one final point which, being part of the relevant circumstances referred to in section 4B(2), would in any event have overridden these other factors. There is a great difference between being on bail (even on strict conditions) and being on a suspended sentence, as breach of the latter automatically brings into force the whole of the suspended sentence, as well as any punishment for the new offence, and so is a very powerful sanction. But under the Bail Act 1990 the maximum sanction under section 9 appears to be revocation of bail and punishment for the new offence, which has not nearly the same force. It therefore appears completely inappropriate to grant bail to the appellant in these circumstances where the conviction and the length of the sentence is not appealed, but only that the initial part has not been suspended.

I also bear in mind the views on bail pending appeal expressed by the Court of Appeal in Kafoa v R, 20 June 1997.

While as I have said I am pleased to have such an excellent report on the appellant from the Superintendent of Prisons and hope he continues that way, for all the above reasons I therefore refuse this application for stay of sentence and bail pending appeal.

R M Webster
Chief Justice
President, Court of Appeal.

NUKU’ALOFA: 31 January 2005

Undernote referred to:

The Plaintiff applies for leave for a judicial review of the Magistrate’s decision on 20 October 2004 to allow the prosecution a further adjournment of the Preliminary Inquiry [PI] in the criminal cases against him and others (Nos 692-6/03). The Plaintiff claims that the PI has been adjourned several times since December 2003. He seeks an order of certiorari quashing that decision.

In terms of Order 27 Rule 2(5), the Court is not to grant leave for judicial review unless it is satisfied that the applicant has a sufficient interest in the matter to which the application relates.

Sufficient interest is the first and foremost consideration in relation to an application for leave to apply for judicial review; and it is a broad flexible concept. At this stage the applicant need only show that he has a prima facie or arguable case or reasonable grounds for believing that there has been a breach of a public duty: the court should not go into the matter in depth but should consider on a quick perusal of the material then available whether it discloses what might on further consideration turn out to be an arguable case for the grant of the relief claimed: IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93 at 105, 106 (HL).

In this case in terms of section 74 of the Magistrates’ Courts Act (Cap 11) there appears only to be an appeal to the Supreme Court from a decision of the Magistrate in a criminal case triable summarily - i.e. not in a case on indictment such as the Plaintiff’s. It is clear that historically certiorari would issue against judicial acts: Judicial Review of Administrative Action (5th Ed 1995) by de Smith, Woolf & Jowell paras 16-018, A-016 etc. It therefore appears that it is at least arguable that a review by a superior court should in certain circumstances lie against a judicial act from which there is no other appeal.

On that basis I considered on the material available to me that it disclosed what may turn out to be an arguable case: and so I exercised my discretion to grant leave to apply for judicial review in respect of the Magistrate’s decision to allow a further adjournment.

The Plaintiff also seeks an order striking out and/or dismissing all the charges in the criminal proceedings against all 3 accused (ie himself and his 2 co-accused), but I do not see that there is an arguable case, as that is not appropriate for judicial review, being a matter of criminal procedure. In any event if his 2 co-accused wish to seek that they must apply separately. I therefore refuse leave to apply for judicial review in that respect.

R M Webster MBE
Chief Justice.

DATED: 18 November 2004