IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 1390/98

Taufa

v

R

Finnigan J
23 October 1998; 23 October 1998

Criminal procedure ⎯bail ⎯ requirement to release 

The appellant faced 11 charges relating to theft of firearms and of providing a firearm to an unlicensed person. The magistrate remanded the appellant in custody for one week. The appellant appealed against the refusal of bail by the magistrate. 

Held: 

1. In assessing whether or not to grant bail, there are five main matters and seven in all which a Magistrate can consider. They are alternatives, but one or more must be shown to the satisfaction of the Magistrate before the mandatory requirement to release on bail is negatived. 

2. Primarily, the matters are the seriousness of the offence (coupled with the probable method of dealing with the defendant), a defendant's criminal record, his record of complying with bail terms in the past and the strength of the prosecutor's evidence. 

3. If a Magistrate in refusing bail relies upon a ground then he must show 20 why. 

4. The appeal was allowed. 

Statutes considered: 
Bail Act 1990 
Magistrates’ Courts Act Cap 11 

Counsel for appellant: Mr Fifita
Counsel for Crown: Mr Kefu

Judgment

This is an appeal against refusal of bail by a Magistrate pending hearing. On 20 October the defendant appeared before the Magistrate in answer to 11 summonses, and on his behalf Mr Fifita requested an adjournment for one week till next Tuesday, 27 October. The defendant wishes to plead not guilty to all 11 charges, all within the Magistrate’s jurisdiction, 6 of theft of a firearm and 5 of providing a firearm to an unlicensed person. 

The prosecutor applied for a custodial remand, submitting that the charges are for serious offences involving theft of 7 firearms and providing firearms without a licence. Mr Fifita replied by seeking bail, saying that the defendant is a police officer. 

The Magistrate responded that, first, he believed these are very serious offences, and that it is very dangerous to release the defendant on bail because death had occurred here in Tonga as a result of shooting with a gun; and, second, that the pressure of the offences on the defendant is very high and he might do something which could be worse. He thereupon remanded the defendant in custody for one week till next Tuesday, 27 October. 

In support of the appeal, Mr Fifita relies on s 46 of the Magistrates’ Courts Act Cap 11, and submits that the defendant is entitled to bail as of right. He advances other grounds also, one of which is that three of the summonses were served in the courtroom while he was there, but without notice to him. This was contrary in his submission to s 14 of Cap 11, which provides for service 7 days before hearing. No objection is taken in the appeal to service in the courtroom. I pause to comment that it seems the 7 days will elapse before the defendant is required to plead to those charges. There was nothing that the Magistrate did, and there can be no appeal on this ground.

Mr Fifita submits also, as a separate ground, that the Magistrate had shown bias by making comments to the defendant about the quality of his counsel. He said the defendant had instructed him that the Magistrate had spoken to him outside the courtroom before the court sitting began, and had enquired who was his counsel. Upon being told that counsel was Mr Fifita, the Magistrate is said to have told the defendant that he had made a wrong choice, and that his counsel might mislead him. In Mr Fifita’s submission, this resulted in the Magistrate’s treating the defendant unfairly, by taking into account his opinion of the defendant’s counsel, even though he did not say so in court. 

I pause to compliment and thank Mr Kefu who appeared at short notice on behalf of the Crown. Like Mr Fifita, he was aware of this hearing only late yesterday, but in the time available he made adequate preparation, without the advantage of the police file. His submissions have been very helpful, both on a matter that I now need only mention briefly, and on the merits of the appeal. That other matter was one that I raised myself as a question, and which I am satisfied, after hearing from both counsel, need not trouble the court in this appeal. 

On the merits, Mr Kefu points out the provisions in s 4 of the Bail Act, No 27/1990. He submitted that this Act had repealed s 46 of the Magistrates’ Courts Act, 70 but in the absence of express repeal I find that is not so. To the contrary, I find that s 3 of the Bail Act is in harmony with s 46, and only to the extent that the latter statute provides and limits a discretion about granting bail, and thus may conflict with s 46, is that earlier provision superseded. In practical terms, there can be no need now to refer to s 46.

What the Bail Act has done is require that Magistrates in cases like the present must exercise a discretion, and provide guidelines which must be followed. Mr Kefu submits that the Magistrate did exercise the discretion and follow the guidelines. In particular, he submitted, the Magistrate applied s 4(1)(i)(b) — when he held there was a likelihood of further offending — and s 4(2)(a) — when he held that the offences charged are serious. However, s 4(1)(i)(b) provides: 

A person who is arrested or charged with an offence punishable with imprisonment shall be granted bail unless the Court … is satisfied that: 

(i) there are substantial grounds for believing that, if released on bail (whether or nor subject to conditions) he will 

(a) … 

(b) commit an offence while on bail; 

(c) … 

(ii) … 

(iii) … 

(iv) … 

(v) … 

There are five main matters and seven in all which the Magistrate can consider. These are clearly alternatives, but one or more must be shown to the satisfaction of the Magistrate before the mandatory requirement to release on bail is negatived. To be satisfied that the defendant will commit an offence while on bail, he must be “satisfied that … there are substantial grounds for believing” that he will. For the Magistrate to be satisfied about any of the guidelines in s 4(1), he must have facts. Certain facts which must be taken into account are provided in s 4(2). Primarily, these are the seriousness of the offence (coupled with the probable method of dealing with the defendant), a defendant’s criminal record, his record of complying with bail terms in the past and the strength of the prosecutor’s evidence. 

These facts may come from evidence or submissions. The prosecutor may advise the court of matters within those 5 guidelines. The facts may come also from something that is public knowledge and may properly be taken into account, such as a criminal record. 

In the present case, the prosecutor gave no information to the court except a statement that the charges were serious. He must have assumed that the facts upon which he relied for a remand in custody were obvious. The Magistrate proceeded as if they were obvious, and in my view did not exercise the discretion properly. Although he was right to say he believed the offences were very serious, he went on to say that to grant bail to this defendant was very dangerous because deaths have occurred from shootings. There was nothing said in court by any party to show how the Magistrate connected the defendant with any other shootings that may or may not have occurred. He went on to say that the pressure of the offences on the defendant was very high, and that he might do something worse. If there was a basis in fact for that conclusion, it is not apparent in what was said in court by any party. If a Magistrate in refusing bail relies upon that ground he must show why. In the present case, there may actually be a presumption to the contrary, ie, that the accused will not commit further offences, because the charges all relate to a time in 1997, and the prosecutor did not allege that the defendant had committed any offences in the meantime. Further to that, the defendant, I am advised from the bar, came to the court in answer to a summons, and the Magistrate was given no reason to suppose he would not come back if released on a bail bond. 

The appeal must be allowed. Pursuant to s 80(1) of Cap 11, I reverse the decision of the learned Magistrate and release the defendant on bail. I am told he is presently on bail to appear in the Magistrates’ Court on 11 November 1998, on some other charges. The terms of that bail bond will bind him on these 11 charges also until 27 October, when he will again come before the Magistrate on these charges. On that day the question of his bail on these charges will again be before the Magistrate for decision in the ordinary way.

In addition, at the request of the Crown, I stipulate that the defendant shall not, while on bail on these charges until 27 October, obtain or use a passport. 

Before finishing, I have to say one more thing. The defendant told his counsel that the Magistrate spoke to him outside the courtroom before the court sitting. I have made no judgment about what may or may not have happened, whether it did or not. But because the matter has been mentioned I am bound to say this. If there is discussion about a case outside the courtroom between any Magistrate or any Judge and a defendant, that Magistrate or Judge must clearly disqualify himself and have nothing further to do with the case. Every part of the case must be in the courtroom only. This is so that justice will be seen to be done. The courts must always show the public that they are being fair. They must avoid bias, but not only bias, they must avoid even the perception of the possibility of bias.