IN THE SUPREME COURT OF TONGA

Tone anors

v

Police

Supreme Court, Vava'u
Ward CJ
AM 22-25/2004

14 May 2004; 28 June 2004

Criminal procedure – appellants were children – treated the same as adults – guilty plea – appeal allowed

The appellants appeared in the Magistrate's Court in Vava'u on 9 September 2003 charged with various offences of housebreaking and theft. They all agreed to have their cases dealt with at the lower court. They were unrepresented although Funaki had instructed counsel. A letter had been sent by counsel to the court advising that Funaki wished to plead not guilty to one offence but guilty to the rest and seeking an adjournment until his lawyer could attend. The offences had occurred over a period of three months and the accused appeared in court about one month later. At the time the appellant Funaki was 13 years old, Tone was 14, 'Ale 15 and Lau'i 16. After the appellants had been arrested, the parents went to the police station but were not allowed to see or speak to their children. Police practice in all cases was that they do not allow anyone except a lawyer to see an accused person until they have completed their investigation. Despite their youth, these appellants were treated in the same way. The appeal, despite the pleas of guilty, was against conviction an the grounds raised matters relating to the lateness of the service of the summons, the failure of the magistrate to advise the appellants of their rights, the suggestion that the magistrate had prevented them from obtaining legal representation and his failure to consider the request from Funaki for an adjournment. In December 1995, Tonga acceded to the Convention on the Rights of the Child but had not taken any steps to enact any of the provisions.

Held:

1. The court had discretion to allow an appeal following a guilty plea if there were circumstances which left the court with serious doubt that the appellant understood the procedures under which he was to be tried. Such a decision should not be taken lightly and the court would only act where there was clear evidence of the circumstances which gave rise to the concern. The Court's concern arose from the manner in which the appellants were treated from their arrest to their trial and there was no dispute over that. 

2. Had the appellants been able to speak to their parents, they would have been given advice or a lawyer might have been instructed, as was the case with Funaki. The Court had no doubt that, had they been represented, the lawyer would have raised the circumstances of their detention.

Rules considered:
Convention on the Rights of the Child

Counsel for appellants: Mr Vaipulu
Counsel for respondent: Mr Kefu

Judgment

The appellants appeared in the Magistrate's Court in Vava'u on 9 September 2003 charged with various offences of housebreaking and theft.

They all agreed to have their cases dealt with at the lower court. They were unrepresented although Funaki had instructed counsel. A letter had been sent by counsel to the court advising that Funaki wished to plead not guilty to one offence but guilty to the rest and seeking an adjournment until his lawyer could attend.

The offences had occurred over a period of three months and the accused appeared in court about one month later. At the time the appellant Funaki was 13 years old, Tone was 14, 'Ale 15 and Lau'i 16. 

The appeal, despite the pleas of guilty, was against conviction an the grounds raised matters relating to the lateness of the service of the summons, the failure of the magistrate to advise the appellants of their rights, the suggestion that the magistrate had prevented them from obtaining legal representation and his failure to consider the request from Funaki for an adjournment.

During the hearing in this court, it appeared that, after the appellants had been arrested, the parents went to the police station but were not allowed to see or speak to their children. Mr. Kefu told the court that the police practice in all cases is that they do not allow anyone except a lawyer to see an accused person until they have completed their investigation. Despite their youth, these appellants were treated in the same way.

The result was that, by the time they were before the court and being asked to decide how and where to be tried and then to enter their pleas, they had not seen anyone outside the police.

I asked Mr Kefu to ascertain whether Tonga was a party to any international conventions relating to the treatment of young offenders. I am grateful to him for his assistance.

It appears that, in December 1995, Tonga acceded to the Convention on the Rights of the Child with the exception of some of the optional protocols, which do not affect this case.

Article 37 of that Convention provides:

"No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."

Mr. Kefu properly concedes that the manner in which these appellants were treated was in breach of the requirements of article 37.

However, whilst the accession by a State to a convention indicates its willingness to be bound by the terms of the convention, it will only be enforced by the enactment of necessary domestic legislation.

It is a matter of regret that, despite an apparent time limit of 2 years for compliance imposed by the convention, Tonga appears to have taken no steps to enact any of the provisions. It can only be hoped that Government will recognise its obligations and enact legislation to bring Tonga into line with international standards of fair and humane treatment of young persons.

In the absence of any such legislation, the police were acting within the law albeit a law which allows harsh and, I would venture to suggest, unconscionable conduct. The result was that these young people arrive at court to face serious charges without the opportunity to consult even with their parents.

This court has stated before that it will only allow an appeal against conviction following a guilty plea if there is some evidence of equivocation in the guilty pleas entered. Mr. Kefu correctly points out that there is nothing in the record to suggest anything other than normal admission of the offences charged. 

I accept that is the case but I consider the court also has a discretion to allow such an appeal if there are circumstances which leave the court with a serious doubt that the appellant understood the procedures under which he was to be tried. Such a decision should not be taken lightly and the court will only act where there is clear evidence of the circumstances which give rise to the concern. In this case, my concern arises from the manner in which these appellants were treated from their arrest to their trial and there is no dispute over that.

The need for the Convention on the Rights of the Child arose from the widely accepted realization that children need to be treated in a different manner to adults in relation to police and court proceedings. Even in the absence of legislation, the court is entitled to use the terms of any convention to which Tonga has acceded or become a signatory as a guide to what is acceptable. Failure to conform with those terms may result in the court excluding evidence or reversing a decision on appeal. 

In the present case, had the appellants been able to speak to their parents, they would have been given advice or a lawyer might have been instructed, as was the case with Funaki. I have no doubt that, had they been represented, the lawyer would have raised the circumstances of their detention.