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Tu'ivai v R [2007] TOLawRp 5; [2007] Tonga LR 31 (4 April 2007)

[2007] Tonga LR 31

IN THE COURT OF APPEAL OF TONGA

Tu'ivai

v

R

Court of Appeal, Nuku'alofa
Burchett, Salmon, and Moore JJ
AC 01/2006

21 March 2007; 4 April 2007

Practice and procedure – application to appeal Court of Appeal decision – not rare circumstances – application dismissed

On 16 August 2006, the court dismissed an appeal by the appellant against his conviction for an attempt to evade import duties in relation to 600 cartons of Bounty Rum (see [2006] Tonga LR 219 (CA)). Mr Tu'ivai applied to have his appeal re-heard and, in substance, reopened. The appellant requested that the application and the appeal be determined without a sitting of the Court pursuant to the provisions of the Court of Appeal Act. The principal area of concern was that most of the original grounds of appeal relied upon the availability of the full transcript of the trial and the exhibits and these were not available at the hearing of his appeal.

Held:

1. Normally the Court of Appeal would be the final step in the appellate jurisdiction once a decision was signed and delivered. However, the Court decided that there were rare circumstances in which the interests of justice required that a determined appeal be revisited.

2. The appellant did not convince the Court that the application was one of those rare cases where the Court should allow the appeal to be reopened. The appellant did not persuade the Court that, in the earlier judgment it proceeded on a misapprehension as to the facts or the law or that the interests of justice require the appeal to be reopened. The application was dismissed.

Cases considered:

Autodesk Inc v Dyason [No 2] [1992] HCA 2; (1992) 173 CLR 330

Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300

De L vDirector-General, NSW Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207

Logwon Ply Ltd v Warringah Shire Council (1993) 33 NSWLR 13

Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134

Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256

State Rail Authority of NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29

Wentworth v Rogers [No 9] (1987) 8 NSWLR 388

Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672

Statute considered:

Court of Appeal Act (Cap 9)

Mr Tu'ivai in person
Counsel for the Crown: Ms Simiki

Judgment

[1] On 16 August 2006, this Court dismissed an appeal by the appellant against his conviction for an attempt to evade import duties in relation to 600 cartons of Bounty Rum. Mr Tu'ivai has now applied to have his appeal re-heard. The application, in terms, sought a re-hearing of the appeal. However what, in substance, Mr Tu'ivai seeks is that his appeal be reopened.

Jurisdiction

[2] Normally, of course, this Court would regard itself as having exercised exhaustively the appellate jurisdiction once a decision had been signed and delivered. We have, however, as a final Court of Appeal decided that there are rare circumstances in which the interests of justice would require that a determined appeal be revisited. We have decided that it is appropriate to adopt the approach of the High Court of Australia in this regard. The position of the High Court is set out in De L vDirector-General, NSW Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207 at 215:

Reopening of a final order

22. The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law",^[1] where "there is some matter calling for review"23^[2] or where "the interests of justice so require".^[3] It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part",^[4] ie without the attribution of neglect or default to the party seeking reopening.^[5] By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.^[6]
    

[3] This judgment relied substantially on the earlier decision of the High Court in Autodesk Inc v Dyason [No 2] [1992] HCA 2; (1992) 173 CLR 330. In that case, Mason CJ said at pages 302 and 303:

These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.

We propose to adopt the principles enunciated in those judgments of the High Court.

[4] We have before us written submissions on behalf of the appellant and the respondent and a reply from the appellant. The appellant has requested that we determine this application and the appeal, should we decide to reopen it, without a sitting of the Court pursuant to the provisions of s 24 of The Court of Appeal Act. That is the procedure we propose to follow.

[5] The appellant's application is wide-ranging. His principal area of concern is that most of his original grounds of Appeal relied upon the availability of the full transcript of the trial and the exhibits and that these were not available at the hearing of his Appeal. He also now seeks to include further grounds. The transcript of the Supreme Court proceedings has been made available and Mr Tu'ivai's submissions to us were prepared after he had had the opportunity to examine the transcript.

The Submissions

[6] As a general comment, it must be said that Mr Tu'ivai's submissions are, in very large part, a repetition of those which he presented to us at the hearing of his Appeal in August last year. They repeat claims made as to defects in the summing up; to a very considerable extent, they constitute as Crown Counsel has submitted, an attempt to have a "second bite at the cherry". Insofar as this is the case, they provide no support for his application to reopen the appeal. We have therefore sought to isolate those parts of his submissions which raise matters which rely upon the transcript and which he was not able to raise previously because of the absence of the transcript. In our view it is only such matters that can legitimately be put forward to support the application. It is important to emphasise, however, that where the absence of a transcript at the hearing of an appeal is relied upon as a ground for such an application as is now made, the responsibility of the appellant for that absence (in this case Mr Tu'ivai applied for the transcript too late in the period leading up to the hearing of his appeal in 2006) would itself be a factor in considering whether to reopen the appeal. Mr Tu'ivai also raises issues concerning the independence and competence of his counsel at trial. To some extent these issues were raised before us in 2006 but insofar as they were not raised, they clearly could have been and, again, cannot constitute a legitimate ground for a reopening of the appeal.

[7] The first example of reliance on the transcript appears at the bottom of page 2 and the top of page 3 of Mr Tu'ivai's submissions. He criticises the summing up on what he acknowledges is a technical point. The Judge's comment was that a witness, Lisiate Lavaka, said that Mr Tu'ivai had said," why did they not go and inspect the Indians' container with 600 cartons?" Mr Tu'ivai points out that it was another witness who was said to have used those words and the evidence was that Mr Tu'ivai said the same thing as that other witness. The point has no substance.

[8] The next issue concerns a criticism arising from the record of the police interview with Mr Tu'ivai. The point seems to concern the appellant's right to remain silent. If this is indeed the issue, it is one that could have been raised at the hearing of the Appeal and indeed should have been raised at the trial. We do not consider that the point raised as it now is, as a criticism of the summing up, can support the application for a rehearing.

[9] Then the appellant raises some issues concerning the search warrant. it is submitted that the Chief Justice should not have allowed evidence from the search because it was illegal. In its submissions in response, the Crown points to evidence supporting the legality of the search and also makes the point that the statements made by Mr Tu'ivai during the search were made entirely voluntarily. Again, any issues as to what was said during the search or as to the legality of the search and evidence tendered as a result of it, could and should have been raised at trial and/or at last year's hearing. No good reason has been put to us as to why that proper procedure was not followed. It is too late to raise these issues now.

[10] Mr Tu'ivai repeats and further elaborates upon arguments as to the content of the indictment and concerning a letter from the Collector of Customs. These matters were argued before us last year. The present submissions constitute an attempt to reopen matters already determined by us. The remaining matters in the submissions all refer to issues which were argued before us last year and which do not rely upon the content of the transcript of evidence.

Determination

[11] Mr Tu'ivai has not convinced us that this is one of those rare cases where we should allow the appeal to be reopened. He has not persuaded us that, in our earlier judgment we proceeded on a misapprehension as to the facts or the law or that the interests of justice require the appeal to be reopened. The application is, therefore, dismissed.

^[1] Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 302.
^[2] Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265.
^[3] Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 322.
^[4] Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 684; cf State Rail Authority of NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 at 38, 45-46; Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 at 168.
^[5] Autodesk Inc v Dyason [No 2] (1993)176 CLR 300 at 303.
^[6] Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 302; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394-395; Logwon Ply Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-29.