IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO.CR.APP.8-9/02

BETWEEN:

1. ‘ONITILE MANU
2. VILIAMI T. HOKAFONU
Appellants

AND:

POLICE
Respondent

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Sisifa for the Respondent and
Mr Tu'utafaiva for the appellants.
Date of hearing: 22 April 2002.
Date of judgment: 26 April 2002.

JUDGMENT

The two appellants are facing serious drug and associated charges. They have been held in custody since their arrest on 30 October 2001. They have made three applications for bail in the Magistrates' Court and there has been one appeal to this court but the applications and the appeal were declined. The present appeal is against the two latest refusals which were given in decisions dated 14 March and 17 April 2002 respectively. It was agreed that they would be dealt with together.

The position regarding bail is governed by the provisions of the Bail Act 1990. Section 3 (1) provides that every person who is arrested and charged with a criminal offence is to be released on bail. Section 3, however, is subject to the other provisions of the Act and section 4 sets out special provisions that apply when a person has been arrested or charged with an offence punishable with imprisonment, which is the situation faced by the two accused in the present case. The relevant provisions in section 4 are set out in subsection (1) and provide:

"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) . . . .

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

Certain factors which the court is required to have regard to in reaching a decision under subsection (1) are then set out in section 4 (2). The court is required to have regard to all the relevant circumstances of the case and, in particular, to the four non-exclusive matters specified in subsection (2) which cover such things as the nature or seriousness of the offence, the character and community ties of the defendant, the defendant's previous record in respect of the grant of bail and the strength of the Crown's case.

It would appear that the principal reasons advanced by the magistrate for declining bail in the present case were his conclusions that, if released, the two accused would fail to surrender to custody for the hearing and/or would interfere with witnesses.

In his forceful and well-structured submissions, counsel for the appellants made a number of points aimed to show that the magistrate had got it wrong. Dealing first with the potential for the two accused to interfere with the witnesses, counsel accepted that there is always a likelihood of an accused person interfering with witnesses or exhibits but he submitted that the test requires there to be a realistic chance of that happening. In the present case, counsel argued, the learned magistrate could not reasonably have reached that conclusion because all the relevant exhibits were now in the custody and control of either the court or the Police Department and statements or briefs of evidence had been taken by the Crown from all of their proposed 89 witnesses in the case.

Against that background, counsel submitted that it was most unlikely that the two accused could interfere with either the witnesses or the exhibits. He also noted that, acting on legal advice, neither accused has made any statements to the police in the matter and that they both intend to plead not guilty and defend the charges. Counsel submitted that the whole of the police case is based, as he put it, on circumstantial evidence only.

In relation to the likelihood of the appellants absconding should they be granted bail, counsel submitted that the most powerful evidence in rebuttal of that proposition is the fact that they were both unwittingly recently given that opportunity but neither took advantage of it.

The court was informed that on the Wednesday prior to this appeal hearing, a prison officer had released the two accused from Hu'atolitoli prison by mistake. On the Friday, they had telephoned the lawyer's office to see what they should do now that they had been released. They were not able to speak to counsel because he was in court but they left a message with his assistant. Shortly thereafter the two accused were apprehended and returned to custody. Counsel made the point that if they had intended to abscond they surely would have taken advantage of the opportunity which had then been presented to them on that occasion.

For the Crown, counsel stressed that the seriousness of the alleged offending and the scale of operation were ample reason why the magistrate was justified in refusing bail. Counsel spent a large portion of his submissions explaining how, in the Crown's view, the alleged crimes involved an international drug trafficking ring and he told the court that presently the Tongan police were actively working in conjunction with the Australian police investigating alleged connections between the two accused and overseas drug operators. Apparently extradition proceedings have also been instigated by the Crown Law office in an attempt to extradite back to the Kingdom two people from Australia and one from Fiji who were allegedly involved in the trafficking associated with this case.

Crown counsel submitted that the retention of the two accused in custody would assist the extradition proceedings although, when pressed by the court, he was unable to expand on that bald assertion. Crown counsel conceded that the case against the two accused was circumstantial but he submitted that that factor made the risk even higher that they might seek to interfere with the witnesses because, as he put it, most of the 89 witnesses were well acquainted with the two accused and, as the case was circumstantial, interfence with only one or two of the witnesses, could result in a breakdown of important links in the chain of causation.

There is no onus on an accused person to prove that he will, in the context of this case, surrender to bail or not interfere with witnesses or otherwise obstruct the course of justice. There is a strong presumption in the Act in favour of bail and the onus is on the prosecution to satisfy the court that there are substantial grounds for believing that one or other of the exceptions to the presumption in favour of the grant of bail has been made out.

It is not, in itself, a ground for withholding bail that an accused faces a serious charge or has a bad criminal record but, of course, such factors are important when it comes to the balancing exercise the court is required to undertake when weighing up all the relevant circumstances of the case.

In the present case, the magistrate referred to the fact that the two accused were facing very serious charges and without doubt he was correct in that assessment. There are 26 charges in all -- 13 against each accused. The most serious charge is that each conspired with the other to import into the Kingdom 100 kilograms of cocaine. Crown counsel was at pains to highlight the purity of the drug involved. There are other charges of possession of cocaine, knowingly dealing with forged documents and abetment with a named third party, who is not before the court, to export overseas 95 kilograms of cocaine. The shipment of cocaine is alleged to have been imported into Tonga inside a container the contents of which, according to the bill of lading, were 735 boxes of ceiling tiles.

If the Crown is able to establish at trial the case as outlined then the crime would indeed be by far the most serious drug offending to ever come before the courts in the Kingdom. The sheer enormity of the scale of the alleged operation coupled with the obvious international connections gives an ample basis, in my view, for the magistrate's conclusions that there is a real risk, as opposed to a fanciful prospect, of the two accused either absconding or interfering with witnesses if released on bail.

If counsel's account is accurate and neither accused attempted to interfere with witnesses or escape the country during their recent release from custody then that is to their credit. Crown counsel was completely unaware of the incident, however, and could not confirm the position. I accept, of course, that this evidence would not have been before the magistrate when he made his decision but, for the reasons mentioned, I am not persuaded that even this new evidence would have caused the magistrate to reach a different conclusion. For these reasons, the appeal is dismissed.

Counsel for the appellant made a very valid point, however, in his submissions in reply when he highlighted the lengthy total period the two accused will have spent in custody if the case is permitted to simply run the normal course. They have already been in custody for almost 6 months and, while counsel accepted that a conviction would inevitably result in a significant term of imprisonment, he made the point that if the two accused are successful in defending the various charges then they will have no redress for time spent in custody.

Counsel noted that the case is due to be called again in the Magistrates' Court on 1 May and the two accused will then be referred on indictment to the Supreme Court for trial. Counsel correctly observed that, although theoretically the trial could be held anytime from about the middle of June, with the present fixture list in this Court it is unlikely that the case could be heard before the end of the year. I agree with that assessment and I accept that a delay of that magnitude, while the two accused remain on remand in custody, would be unacceptable.

I, therefore, direct that the case is to be accorded urgency and that the trial is to take place in this Court as soon as practicable after the presentation of the indictments, even at the expense of other allocated criminal and civil fixtures.

Hopefully, therefore, it should be possible for a fixture to be allocated within approximately 6 weeks from the presentation of the indictments. Crown counsel is to take whatever preliminary steps may be prudent in the circumstances to alert overseas witnesses, in particular, to the urgency order which has now been made in respect of this case. A copy of my decision will also be referred forthwith to the Chief Police Magistrate so that the order can be noted on the court file and acted upon.

NUKU’ALOFA: 26 April, 2002

JUDGE