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Police v Kolo [2007] TOLawRp 9; [2007] Tonga LR 67 (22 May 2007)

[2007] Tonga LR 67

IN THE SUPREME COURT OF TONGA

Police

v

Kolo anor

Supreme Court, Ha'apai
Laurenson J
AM 11-12/2006

21 May 2007; 22 May 2007

Appeal against Magistrate's decision – not proper notice of intention to appeal – appeal dismissed

The two respondents were charged with a number of offences arising out of an incident on the Island of 'Eua on 6 May 2006. In a one sentence decision, the magistrate discharged both accused. The appellant appealed the decision and counsel for the respondents took a preliminary point that the appellant had not given proper notice of his intention to appeal in terms of section 75(1) of the Magistrates' Court Act (Cap 11).

Held:

1. Had it not been for the preliminary point, the court would have referred the matter back to the magistrate with a request that he provide reasons for his decision.

2. Section 75(1) of the Magistrates' Court Act sets out a mandatory requirement that the appeal be notified within 10 days to the magistrate and the other party. As that requirement had not been complied with the appeal was dismissed.

Statute considered:

Magistrates' Court Act (Cap 11)

Counsel for the appellant: Miss Tupou
Counsel for the respondents: Mr Fifita

Decision

Introduction

[1] The respondents were charged with a number of offences, CR169-176/06, arising out of an incident at Esia in 'Eua on 6 May 2006. The magistrate who heard the cases on 26 September 2006 found in a decision notable for its brevity:

"Sir, I have heard these statements and the court have doubt on the evidence given as well as the way the police carried out the work and I therefore discharge base on BENEFIT OF DOUBT."

[2] The appellant was dissatisfied with a number of aspects of the decision. It appealed by filing a document headed "Appeal Form" dated 29 September 2006.

[3] My first reaction was that the decision was so inadequate, given the specific issues raised by Mr Fifita in his closing submission (see notes of evidence), it should be referred back to the magistrate with a request that he provide reasons for his decision.

[4] Mr Fifita, whilst agreeing with this possibility, raised a preliminary point namely that the appellant had not complied with section 75(1) of the Magistrates' Court Act (Cap 11) which states:

"The appellant shall within 10 days after the date of the magistrate's decision give written notice to the magistrate and to the other party stating his intention to appeal and the general grounds of such appeal."

[5] Mr Fifita informed the court neither he nor the respondents had received notice of the appeal within 10 days and that the first notice received by them was a Notice of Directions Hearing placed in his rack (number 30) on 17 April 2007 following a direction by Ford CJ on 16 April 2007.

[6] Counsel for the respondents accordingly submitted that because section 75(1) was mandatory as to service within 10 days on the respondents, this appeal should be dismissed. Miss Tupou for the Crown was unable to offer any counter submission.

Discussion

[7] The Supreme Court file reveals:

(a) The appeal was filed on 18 December 2006.

(b) One copy was placed into rack No 1 (Crown Law Office) the same day.

(c) A translation was requested on 20 December 2006. This was compiled and sent to the Chief Justice on 13 April 2007.

(d) The directions conference was convened on 16 April 2007 for 9 a.m. on4 May2007.

(e) Notices for this conference were then placed in racks 1 and 30 on 17 April 2007.

(f) On 4 May 2007 a further directions conference was set for 16 May 2007 by which time the appellants were to confirm whether the appeals would be proceeding or not.

(g) On 16 May 2007 this confirmation was received from the appellant and the matter was set down for hearing on 21 May 2007.

[8] The result has been that the respondents were unaware of this appeal until 17 April 2007 -- some 7 ½ months after they should have been.

[9] Section 75(1) is quite clear in its terms. There is a mandatory requirement that the appeal be notified within 10 days to the magistrate and the other party.

Decision

[10] Having considered Mr Fifita's submission, I can find no reason why it is not correct. The appeal is accordingly dismissed. The respondents may file a memo as to costs within 10 days. The appellant is to reply within a further 10 days.