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

CR 36/2010

Jonesse

v

R

Ford CJ 

30 March 2010; 31 March 2010 

Bail – permission sought to vary bail condition – sought to leave country – powerful incentive to abscond – no variance granted 

The accused was arrested on 18 February 2010 and charged with forgery and dealing with a forged document. When he was taken before the magistrate later that same day, bail was refused and it was ordered that the accused be kept in custody. The following day the accused appealed against the magistrate's order refusing bail. The Crown did not oppose the appeal and the order of the magistrate was duly quashed and bail was granted on terms which included the condition that the accused was not to leave the Kingdom without the leave of the Supreme Court. The accused sought an order varying his bail conditions to allow him to leave the Kingdom.  

Held: 

1. The relevant provisions of the Bail Act 1990 made it apparent that in the case of a person arrested for or charged with a criminal offence there was a presumption in favour of bail.  

2. The balancing exercise involved weighing the risk that the accused will fail to appear at trial against the restriction on the liberty of an unconvicted man. One of the overriding considerations was that once the accused left Tonga he would cease to have any established connection with the Kingdom. He had no family ties, no property or no business interests which might have given the Court some degree of comfort. There were other practical considerations which militate against the notion that the accused will readily return to Tonga for the preliminary hearing and (if necessary) trial.  

3. The charges were very serious and, realistically, a conviction was likely to result in a lengthy sentence of imprisonment.

4. The court concluded that given the opportunity, the accused would have a powerful incentive to abscond. The court was not prepared to vary the bail conditions so as to allow him to travel to New Zealand. 

Case considered: 

Cater v R [1999] Tonga LR 67

Statutes considered:

Bail Act 1976 (UK) 
Bail Act 1990 

Counsel for the applicant : Mr Niu 
Counsel for the respondent : Mr Sisifa

Ruling

The application 

[1] Of necessity, this matter has been treated with urgency. The accused seeks an order varying his bail conditions to allow him to leave the Kingdom. He is booked to fly out of the country this evening on Air New Zealand flight NZ 277 departing at 1950 hrs. The application was brought to my attention only yesterday during the afternoon adjournment of a jury trial which I have been presiding over this week.

[2] Obviously, the application needed to be dealt with promptly. I issued an order yesterday afternoon stating that I would only consider granting leave if the application was accompanied by the consent of the Attorney General. The Attorney General responded promptly and the Chief Registrar received a letter late yesterday afternoon from the Solicitor General advising that the Crown objected to the application for the reasons set out in the letter. I will come back to these matters. At this point, I simply wish to record my gratitude to both counsel for making an extra effort in having helpful written submissions prepared at extremely short notice and presented to me this morning. 

[3] The delay in having the application drawn to my attention is not directly the fault of the accused. He filed his application together with a supporting affidavit in the Magistrate's Court on 18 March 2010. It appears that it was referred to a magistrate who granted the application on condition that the accused pay a cash bond of $2000 into court and provide two sureties in the sum of $2500 each. There were then other complications which I need not go into but suffice it to say that at some stage yesterday the matter was drawn to the attention of the Chief Magistrate who, no doubt for the reasons explained in paragraph [4], sought the advice of the Chief Registrar of this Court. The application was then referred to this Court. Counsel agreed to the referral. 

[4] The accused was arrested on 18 February 2010 and charged with forgery and dealing with a forged document. When he was taken before the magistrate later that same day, bail was refused and it was ordered that the accused be kept in custody. The following day the accused appealed to this Court against the magistrate's order refusing bail. The Crown did not oppose the appeal and the order of the magistrate was duly quashed and bail was granted on terms which included the condition that the accused was not to leave the Kingdom without the leave of the Supreme Court. 

The charges 

[5] The accused, Mr John Jonesse was CEO and Managing Director of the Shipping Corporation of Polynesia Ltd, the operators of the MV Princess Ashika, the vehicular and passenger ferry which tragically sank in Tongan waters on 5 August 2009 with the loss of 74 lives. A Royal Commission of Inquiry into the sinking of the MV Princess Ashika was established. It held extensive public hearings in Tongatapu between October 2009 and March 2010. The final report of the Royal Commission of Inquiry was delivered to His Majesty this morning. 

[6] Given the very senior position the accused held in the Shipping Corporation of Polynesia, it is fair to say that since the tragedy, he has had a larger-than-life profile in the Kingdom and he has been the subject of news items and press articles both in Tonga and abroad. The two initial charges laid on 18 February 2010 related to one aspect of his alleged involvement in the purchase of the MV Princess Ashika, namely, his alleged forgery of a signature to a relevant document back in April 2009 and his subsequent alleged representation of the document as being genuine. Forgery and knowingly dealing with forged documents carry maximum sentences of seven years and five years imprisonment respectively. 

[7] Last Saturday, 27 March 2010, the accused was charged, again in relation to the sinking of the MV Princess Ashika, with an additional 25 charges including one charge of manslaughter of the victims who drowned when the Princess Ashika sank. The offence of manslaughter is one of the most serious criminal offences in the statute books. It carries a maximum sentence of 25 years imprisonment. The preliminary inquiry, initially scheduled for 22 April 2010, has now been adjourned until 21 July 2010. 

The Bail Act 

[8] The relevant provisions in the Bail Act 1990 are sections 3 and 4. They read as follows: 

"3. (1) Subject to the provisions of this Act, every person – 

(i) who is arrested for or charged with a criminal offence; . . . . shall be released on bail until the date when he is next due to surrender to custody. 

4. (1) 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 not subject to conditions) he will: 

(a) fail to surrender to custody; 

(b) commit an offence while on bail; or 

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;  . . . . 

(2) In taking the decisions required by subsection (1), the Court . . . shall have regard to all the relevant circumstances and in particular – 

(a) the nature or seriousness of the offence (and the probable method of dealing with the defendant for it); 

(b) the character, antecedents, associations and community ties of the defendant;  

(c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; 

(d) the strength of the evidence of his having committed the offence." 
(emphasis added) 

[9] It will be apparent from the foregoing that in the case of a person arrested for or charged with a criminal offence there is a presumption in favour of bail. Subparagraphs (b) and (c) of section 4(1)(i) have no relevance to the present case but they have been included because of a reference to the equivalent of one of the subparagraphs in an authority cited below. 

The law 

[10] In Cater v R [1999] Tonga LR 67, the Court was faced with an application by a United States citizen, heard in April 1999, to vary the conditions of his bail to allow him to travel back to the USA and attend to his business and rejoin his family pending the hearing of the preliminary inquiry in the Magistrate's Court on 14 July 1999. The accused had been charged with two offences: obtaining credit by false pretences and, alternatively, aiding and abetting that offence. In reference to the provisions of the Bail Act, former Chief Justice Ward said this: 

"Under the Bail Act, the accused is entitled to bail unless the court is satisfied there are substantial grounds for believing that, if bailed, he will fail to surrender to custody. I do not read that as meaning the accused has to satisfy the court he will attend but that the prosecution must satisfy the court he will not. That seems clearly to place the burden on the prosecution. Having said that, in any case involving a foreign national with no ties to this country, the court may well feel that he will fail to surrender to his bail unless there is a condition that he should surrender his passport." 

[11] Although Ward C.J. accepted that the offence the accused faced was serious because it carried a maximum penalty of three years imprisonment, His Honour clearly had reservations about the strength of the evidence against the accused. The offence related to an unpaid hotel bill of approximately $20,000 by a guest who had died unexpectedly while still in residence at the hotel. The accused had earlier undertaken in writing to pay the guest's bill but he failed to do so. The Court expressed some criticism of the hotel in allowing the deceased to incur such a substantial debt and he expressed the view that, on the evidence described to him, he did not feel that the case against the accused was a particularly strong one. He, accordingly, allowed the accused to have his passport returned to him. 

[12] The relevant provisions in the Bail Act (para [8] above) mirror the provisions in Part 1 of Schedule 1 in the (English) Bail Act 1976. Commenting on the reasons for refusing bail listed in the equivalent of section 4(1)(i)(a), Emins on Criminal Procedure (7th ed.), p.6.3.2 states: 

"It will be noticed that the wording of the reason is very precise. The court must be "satisfied that there are substantial grounds for believing" that, if bail were granted, one or other of the undesirable consequences specified would ensue. A subjective belief that that is what would happen is not enough if it is based on flimsy or irrational grounds. On the other hand, the prosecution are not required to prove beyond reasonable doubt that the defendant would jump bail etc, or even to produce formal evidence to that effect. The question for the court is essentially a speculative one, not amenable to proof according to the rules by which disputed issues are normally resolved in a court of law. Thus, a prosecutor in objecting to bail may state his opinion that it would lead to the accused absconding, or he may even, with a view to showing that there is a risk of interference with witnesses, recount to the court what a police officer has been told by potential witness of threats the latter has received (Re Moles [1981] Crim LR 170). This was confirmed by Mansfield Justices ex parte Sharkey [1985] QB 613, where the Divisional Court accepted counsel's proposition that "a bail application is an informal inquiry and no strict rules of evidence are to be applied."

[13] Commenting also on the equivalent English provisions, Archbold 2009, 3 -- 53 states: 

"A person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him; where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail; but they do not do so of themselves, without more; they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty; whether or not that is the conclusion reached, clear and explicit reasons should be given: Hurnam v State of Mauritius [2006] 1 W.L.R. 857, PC." 

Grounds of application

[14] The ground stated by the accused in his application for leave to vary the conditions of his bail to allow him to travel to New Zealand read as follows: 

"1. The accused needs to travel to Christchurch, New Zealand, to take his wife and two adopted teenage daughters 210 and settle them in at their residence there and put the girls into school and also try and find a job to support them. 

2. The accused will return to Tonga for the preliminary inquiry which has been set down to be held in the Magistrate's Court on Thursday, 22/4/2010. He has to go through with this trial until its final disposal because he will not be free from it until then. He cannot afford to have it hanging over him for the rest of his life if he does not return to finalise it. 

3. The accused had been employed as managing director of Shipping Corporation of Polynesia Ltd but since the tragic sinking of its vessel, the M.V. Princess Ashika, he has been suspended and it is unlikely that he would be re-employed there. He now has to find employment in New Zealand. He cannot afford a cash bond or payment upfront of any security for this proposed trip to New Zealand. The little money he has for air fares and expenses of himself & family to go to New Zealand and the girls education fees, books and uniforms." 

[15] In a supporting affidavit dated 18 March 2010, the accused states: 

"2. I sincerely ask that I am allowed to travel and take my family to Christchurch. We are all moving to Christchurch because there is no longer any future for us here in Tonga. 

3. Our adopted daughters need to be put into college in Christchurch and they will need money for that. 

4. My wife and I need to find employment to keep us and to keep up mortgage payments on our house at Christchurch. 

5. I pledge and undertake to return to Tonga for the preliminary inquiry and also for the trial if the matter is committed for trial. 

6. I also undertake to reside only at my address at Christchurch and to be accessible by telephone at that address." 

[16] In his submissions, Mr Niu stressed the fact that the accused has led an exemplary life up until now and he has no previous criminal convictions in New Zealand, Tonga or elsewhere. Mr Niu also made the point that the accused has a mortgage to pay on his house back in Christchurch and he needs to earn an income in order to keep up his mortgage commitments and to provide for his family. Counsel submitted: "He has no job in Tonga or prospect of any job in Tonga. He can only hope to find one in New Zealand." Counsel submitted that the accused does have in Tonga 1998 Mercedes Mussi four-wheel-drive car which he estimates has a value of TOP$12,000 and he is prepared to leave that vehicle with the Tonga police as security. Mr Niu also submitted that the accused was prepared to undertake to deliver his passport to the Tonga High Commissioner in New Zealand. 

Crown's response 

[17] In his letter of 30 March 2010, the Solicitor General states in part: 

"The basis for the objection is that there are substantial grounds for believing that the accused will fail to surrender to custody. 

1. The accused is facing very serious charges; 

2. The accused has not provided sufficient reliable evidence that he will return or abide by the conditions he has given; 

3. The police here in Tonga have no way of monitoring whether the accused will always remain at the address indicated or use the same telephone number etc; and 

4. The matter has only been adjourned to July 2010, 3 months away." 

[18] Mr Sisifa acknowledged that Tonga has an extradition treaty with New Zealand but he submitted that that would not prevent the accused leaving New Zealand for some other country with which Tonga did not have such a treaty. He also emphasised the significant delays that are almost inevitably involved in any extradition proceedings. Crown counsel submitted that the other undertakings described by defence counsel were not foolproof and once the accused left this jurisdiction, the Crown would not have any supervision or control over his actions. In relation to the employment issue, Mr Sisifa produced a letter from the Solicitor General of today's date confirming that Mr Jonesse still has a valid work permit in Tonga and there is nothing to prevent him either obtaining employment or starting up his own business. 

Discussion 

[19] There can be no question that the accused is facing very serious charges. It is probably undesirable for me to speculate too much on "the probable method of dealing" with him (the terminology used in section 4(2)(a)) in the event of a conviction, apart from stating the obvious that any sentence will necessarily be commensurate with the accused's proportion of culpability as determined by the evidence but counsel were in agreement that a conviction would inevitably result in a sentence of imprisonment. Emmins makes the point (p.88): "The more serious the charge the more likely it is that he will abscond because he will realise that conviction would result in a lengthy prison sentence." 

[20] The other criteria in section 4(2)(d), namely the strength of the evidence of the accused having committed the offence, invariably poses difficulties. Normally the court has very little to go on in assessing this criteria and it is required to make a judgment call based on submissions and the very limited information about the facts of the case which it then has before it. The strength or weakness of the prosecution case will in general not emerge until at least the committal proceedings stage.  

[21] It was primarily for this reason that I specifically sought the views of the Attorney General on the application. In this case the Attorney General had the unique advantage of having sat through the public hearings of the Royal Commission of Inquiry in the capacity of amicus curiae. He is an independent law officer and I have no doubt that if his conclusion, after listening to all the evidence presented at the Royal Commission, was that the case against the accused was weak, then he would have indicated that to the Court. He did not do so. On the contrary, Crown counsel on the Attorney's behalf submitted this morning that the case against the accused was "particularly strong". Mr Niu took issue with some of the allegations the Attorney relied on. This is not the point of time, of course, to try and resolve such differences. I am bound to say, however, that I certainly would not be prepared to hold on the evidence described to me, as the Court was able to hold in Cater's case, that the prosecution did not have "a strong case on the evidence". 

[22] The relevant considerations set out in section 4(2) of the Bail Act are not exhaustive and in carrying out the balancing exercise Ward C.J. referred to in the Cater case between, on the one hand, the risk that the accused will fail to appear at trial and, on the other, the restriction on the liberty of an unconvicted man, there are many other relevant factors the Court is permitted to take into account. One such factor, and perhaps one of the overriding considerations in this case, is that once the accused leaves Tonga he will cease to have any established connection with the Kingdom. He has no family ties, no property or no business interests which might have given the Court some degree of comfort. There are other practical considerations which militate against the notion that the accused will readily return to Tonga for the preliminary hearing and (if necessary) trial. He admits to having no job and insufficient funds to put up any type of security or bond. He intends to look for employment in New Zealand. If he was to obtain such employment, what assurance does the court have that any prospective employer would grant the accused time off to attend court hearings in Tonga and would he have the financial resources available to meet such expensive commitments? 

Conclusion

[23] It is impossible not to feel considerable sympathy for the situation facing the accused and his family. I recall that I was the judge who heard and granted the Letters of Adoption in favour of the accused and his wife in respect of the two illegitimate Tongan girls who had been abandoned by their mother. The Guardian ad Litem report provided to the Court spoke extremely favourably of the efforts made by the Jonesses in the upbringing of the two girls who at that stage had been in their care for some time. I have no doubt that the family's immediate objective of establishing the children in New Zealand and providing them with a sound education is genuine and worthy in every respect.  

[24] Against that, however, I have to balance the other considerations referred to above. The case against Mr Jonesse and others involved in the Princess Ashika tragedy will undoubtedly have a huge public profile. Even to date, the laying of the preliminary charges have created unprecedented public media attention both in the Kingdom and overseas. Mr Jonesse's involvement personally in the Princess Ashika tragedy has been, and no doubt will continue to be, debated at length in the public arena. The charges are unquestionably very serious and, realistically, a conviction is likely to result in a lengthy sentence of imprisonment. All these factors, plus the other considerations referred to above, lead me to conclude that, given the opportunity, the accused would have a powerful incentive to abscond. For that reason, I regret that I am not prepared to vary the bail conditions so as to allow him to travel to New Zealand.