IN THE COURT OF APPEAL OF TONGA

No AC 4 of 2005

BETWEEN

NAKlTA TU'ITAVAKE
Appellant

AND

REX
Respondent

CORAM: BURCHETT, TOMPKINS AND SALMON JJ.

Counsel for the Applicant: Mr Laki Niu
Counsel for the Respondent: Ms Linda Simiki

Date of Judgment: 10 June 2005
(Full date to be completed by Registrar on delivery)

JUDGMENT OF THE COURT

This is an application for bail, after conviction and sentence to imprisonment, pending an appeal which is listed to be heard at the next sittings of the Court of Appeal in July 2005. The application is brought on the papers pursuant to an established procedure applicable to urgent matters which is authorised by the Court of Appeal Act and Rules and will permit this judgment to be read by the Registrar.

The appellant, who was on bail during the period prior to his trial, was acquitted of murder but convicted of manslaughter at a trial before a jury which gave its verdict on 23 February 2005. He was sentenced by the Chief Justice on 31 March 2005 to 10 years of imprisonment, of which the final 2 years were suspended for a period of 2 years.

In convicting the appellant of manslaughter, the jury must have rejected his claim that he acted reasonably in self-defence but accepted that there was extreme provocation given by the deceased (see s. 89 of the Criminal Offences Act), who is said to have been the aggressor armed with a rock, and accompanied by two others, one also armed with a rock and one with a piece of timber. The appellant was attacked whilst he was in a van, held up in traffic, and he took a fishing knife from the van with which be stabbed the deceased 9 times in the ensuing fight.

Upon the appeal, it is claimed that the appellant, who was previously of good character, had lost control of himself as a result of the provocation to which he was subjected. The order sought upon the appeal, if granted, would suspend the whole of the sentence.

The application for bail is put on the grounds:

a) that the appeal is substantially based and meritorious;

b) that if the appeal were to succeed, bail not having been granted, the appellant would have been wrongly imprisoned, whereas if it fails he will still serve his full sentence;

c) that when on bail before the trial the appellant demonstrated his resolve to comply with the terms imposed upon him, including terms under which he travelled to and from New Zealand on business; and

d) that he will now comply with any terms this Court may impose.

With reference to the power of the Court of Appeal in England to grant bail to an appellant pending the determination of his appeal, Halsbury’s Laws of England, 4th ed, (1990), Vol 11(2) para 904 states (and see also para 998):

"The power to grant bail is rarely exercised. Exceptional circumstances must be shown to exist."

To similar effect is Donovan on The Law of Bail (1981) p 98. In Australia, no less a judge than Fullagar J may be cited for the same proposition, which he stated in Re Cooper’s Application for Bail [1961] ALR 584 when he said that " bail will not be granted after conviction and pending appeal unless exceptional circumstances are shown" . Mason J took this view also in Hayes v R (1974) 48 ALJR 455, as did Fox J in Chamberlain v R (1982) 69 FLR 445 at 447. Fox J added that there were "plainly policy reasons why there should not be a wide latitude" , after conviction and sentence, in the granting of bail.

As to what may be exceptional circumstances, it is impossible to lay down hard and fast rules, but the brevity of a sentence rendering appeal rights futile without bail and the prospect of undue delay occurring before the hearing of an appeal have each, in the context of particular facts, been held to show exceptional circumstances. In R v Giordano (1982) 31 SASR 241 at 243, King CJ, delivering judgment for himself and Zelling and Matheson JJ, discounted " the prospects of the success of the appeal"  as a factor to be assessed by the Court hearing an application for bail " unless those prospects are obvious".

The power of the Court of Appeal of Tonga with respect to bail pending the determination of an appeal is granted by s 26 of the Court of Appeal Act in general terms (the Court " may, if it sees fit, … admit the appellant to bail pending the determination of his appeal" ), and the principle we have been discussing is applicable to guide the exercise of this power. In our opinion, the matters urged upon us in the present case do not amount to exceptional circumstances, particularly in the context of an appeal which is listed to be heard in little more than one month’s time so the application must be dismissed.

Before we part with the matter, we should add that it came to this full Court of Appeal upon the papers because counsel for the applicant suggested the Chief Justice, who is in Tonga and a member of this Court, where he would preside when sitting, should be disqualified because he could not properly consider the merits of an appeal against his own decision made when he sentenced the applicant. Quite apart from what King CJ said in R v Giordano, to which we have referred, we should point out that it is not uncommon for a judge to be asked to give leave to appeal against his or her own decision, an exercise of discretion at least partly based on some evaluation of the degree of doubt there may be about the correctness of the decision. It is also not uncommon for applications for bail pending appeal to be made to the judge who conducted the trial and imposed the sentence, including where a ground of the application is the probability of the appeal succeeding. It should not be assumed that an application of this kind cannot be dealt with by the Chief Justice wherever he has imposed a sentence. Section 94 of the Constitution would prevent him dealing with the appeal itself but that section says nothing about an incidental application such as an application for bail.

BURCHETT J
TOMPKINS J
SALMON J