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R v Pohiva [2003] TOLawRp 17; [2003] Tonga LR 82 (8 April 2003)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

CA 7/2003

R

v

Pohiva anors

Burchett, Tompkins, and Beaumont JJ

8 April 2003; 8 April 2003 Practice and procedure – appeal against interlocutory order – criminal trial

This was an application for leave to appeal against an interlocutory order of the Chief Justice where he refused an application made by the Crown for an order that, in a trial on indictment upon counts alleging sedition and forgery, the jury be selected from the island of Vava'u notwithstanding that the trial was to take place in Tongatapu. On the basis that the subject matter was an interlocutory ruling in relation to a criminal trial, the Crown relied on s 24 of the Court of Appeal Act as attracting the operation of s 15 of the same Act, so as to enable it unilaterally to ask the Court to consider the matter on written submissions, the judges not being present in Tonga.

Held:

1. Where an interlocutory appeal was sought to be pursued by the Crown a further consideration stemmed from the fundamental doctrine of double jeopardy. One of the pillars by which this doctrine was supported was the law's concern to protect the individual against the overwhelming weight of the Crown's resources which should not be permitted to exhaust the powers of defence by repeated proceedings.

2. Leave was not granted to appeal against an interlocutory ruling of that kind. Therefore the application was dismissed with costs.

Cases considered:

Davern v Messel [1984] HCA 34; (1984) 155 CLR 21

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Statutes considered:

Court of Appeal Act (Cap 9)

Counsel for applicant: Mrs Taumoepeau

Judgment

This is an application for leave to appeal against an interlocutory order of the Chief Justice refusing an application made by the Crown for an order that, in a trial on indictment upon counts alleging sedition and forgery, the jury be selected from the island of Vava'u notwithstanding that the trial is to take place in Tongatapu. On the basis that the subject matter is an interlocutory ruling in relation to a criminal trial, the Crown relies on s 24 of the Court of Appeal Act as attracting the operation of s 15 of the same Act, so as to enable it unilaterally to ask this Court to consider the matter on written submissions, the judges not being present in Tonga. The law has always sought to protect litigants, and the integrity of the Court system itself, against a multiplicity of interlocutory appeals by the requirement of leave. Such appeals are not to be permitted as of course. They tend to obstruct the stream of justice. In the case of criminal justice, the High Court of Australia has repeatedly stated, in the context of judicial review, that the preliminary decisions should normally be made in the trial Court so that its processes will not be fragmented. In Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 26, Gibbs J said:

"Once criminal proceedings have begun they should he allowed to follow their ordinary course unless it appears that for some special reasons it is necessary in the interests of justice to make a declaratory order."

Where an interlocutory appeal is sought to be pursued by the Crown a further consideration stems from the fundamental doctrine of double jeopardy. Repeatedly, Courts of high authority have emphasized that one of the pillars by which this doctrine is supported is the law's concern to protect the individual against the overwhelming weight of the Crown's resources which should not be permitted to exhaust his powers of defence by repeated proceedings: see, for example, Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 67, per Deane J (dissenting).

In the present case, the Chief Justice had all the relevant considerations well in mind. What is really sought to be attacked in his ruling is his evaluation of those circumstances in their practical hearing on the trial of the accused. In our opinion, leave should not be granted to appeal against an interlocutory ruling of that kind. Therefore the application is dismissed with costs.