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

CR. NO.112-113/2001

BETWEEN:

SIAOSI HALAHOLO VETE
Applicant

AND:

THE CROWN
Respondent

BEFORE THE HON. MR JUSTICE FORD

COUNSEL: Mr N. Tupou for the applicant and
Miss Simiki and Mr Sisifa for the Crown.

Date of hearing: 2 August 2002.
Date of written submissions: 3 September and 9 October 2002.
Date of judgment: 22 November 2002.

JUDGMENT

Originally, this prosecution involved three accused, each having different counsel. One of the accused, Latu Paseka, is now deceased. Another of the accused, Siaosi Vete, the applicant in the present case, is represented by Mr Tupou, a barrister from Auckland, New Zealand. The third accused, Pita Latu, has been in custody on unrelated charges. It is not clear whether his original counsel or Mr Tupou is now acting for him.

All the accused were arraigned on 20 July 2001. They faced a variety of charges relating to an alleged armed robbery on 10 May 2001. Vete and Latu each pleaded not guilty to all charges and elected trial by Judge alone. Paseka had pleaded guilty on four counts and not guilty on another two counts. His exact date of death is not recorded on the Court file.

The application before the court is an application on behalf of the accused Vete for a discovery order against the respondent. The respondent is named in the application as "The Crown" but it appears as though the term is used loosely in a generic sense and the reference is intended to be a reference, in particular, to the Crown Law Office.

The legal basis for the application is unclear. No authority or grounds are cited apart from the allegation that it is "proper and appropriate for a discovery order to be made" and then there is a broad allegation that an injustice will result unless the respondent is:

". . . directed to prepare and to produce total and complete copies of the requested items, namely the Summary of Facts, Briefs of Evidence, Notebook Records, Charge Sheets, Job Sheets and other relevant records that are in the possession of the prosecution and the police, of the government of Tonga, who is represented by the Respondent."

The information requested from the police is listed and itemised in a formal document. It totals 103 items many of which refer to several separate documents or files.

Although the respondent has not taken objection to the nature of the order sought and has dealt with the matter as a request for disclosure, it is not appropriate to attempt to use the order for discovery procedure in a criminal case.

"Discovery" is the well-recognised term in civil proceedings used to describe the process whereby the parties obtain access to each other's relevant documents relating to the matters in question between them. As is stated in Halsbury, 4th edition, vol 13, para 3:

"There is no provision for discovery in criminal proceedings . . . . Discovery of documents may be obtained in all proceedings (excluding purely criminal proceedings) in the High Court."

For this reason, I reject the application for a formal discovery order. The discovery procedure is simply not appropriate in respect of a criminal case.

A number of the requests for specific items are couched more in the form of interrogatories. Thus, items 12 (e) reads: "Copies of names of Police Officers who have interviewed this person." As with discovery, the practice as to interrogatories is governed by the Rules of the Supreme Court which in general have no application to criminal proceedings.

Although the application for a general discovery order, therefore, fails, argument on the application has raised questions as to the extent of the prosecution's obligation to disclose material to the defence. There are no statutory provisions or rules of the Supreme Court dealing with the situation in the Kingdom.

In presenting his principal submissions, Mr Tupou produced copies of some 40 reported cases from Commonwealth countries which he proceeded to rely upon to a greater or lesser extent. Considerable reliance appeared to be placed by the applicant on the New Zealand authorities produced but New Zealand has its own special legislation dealing with the disclosure of information, in the form of The Official Information Act 1982, and, for this reason, I did not find those decisions of any real relevance to the situation pertaining in the Kingdom. The same can be said for some of the other authorities produced.

In her submissions in response, Miss Simiki disputed the relevance, but not the soundness, of the case law relied upon by counsel for the applicant. She acknowledged that the prosecution had an obligation to, "disclose its case as much as possible to the defence" but she submitted that "the procedures applicable in Tonga are governed by the Magistrates' Courts Act (CAP. 11) which in turn determines the procedure used by the police prosecutors and Crown prosecutors". In essence, her submission was that the current procedures deal adequately with a prosecutor's disclosure obligations.

In his submissions in reply, Mr Tupou argued that, in the absence of any statutory provisions in Tonga dealing with the matter, the Civil Law Act (CAP. 25) applied to permit the application of "statutory instruments from the United Kingdom." In England the disclosure obligations are covered by The Criminal Procedure and Investigations Act 1996.

I am not prepared to entertain this submission. It had not been included in counsel's original submissions and the Crown, therefore, has not had any opportunity to respond to it. In any event, no authority was cited for the proposition that the Civil Law Act has application in criminal proceedings. The suggestion seems quite anomalous with even its very title.

In the same submissions in reply, counsel expresses criticism of aspects of the present procedure such as the practice whereby, if an accused person is committed for trial, then the Magistrates' Courts file is submitted to the Supreme Court pursuant to section 41 of the Act and then forwarded to the Crown Law Office for the arraignment date to be set. With reference to this practice, Mr Tupou submitted:

"One party to the proceedings should not be seen or classified as being SUPERIOR to the other and the present arrangement of disclosing transcripts of Court files and records to the office of the respondent, without notice to any other interested parties, is repugnant and improper in the criminal process."

The difficulty I have with this submission, and the same criticism can be levelled at a number of other points made by counsel in his 25 page "Submissions In Reply", is that they were not part of the applicant's original complaint. They were not raised as issues in counsel's main submissions and Crown counsel has not, therefore, been able to respond to them. They are also, in the context of the present case, largely academic points in that the case has progressed well beyond the committal stage. The accused has been arraigned and a trial date had been set which had to be vacated pending determination of the present application.

In general terms, Crown counsel prosecuting in this Court appear to have an appropriate awareness of the common law rules relating to disclosure of material by the prosecution to the defence. The principles are summed up in the various texts on criminal law and need not be restated apart perhaps from noting the position as summarised in the latest edition of Archbold (Archbold 2001) para 12.48/49:

"While in most cases prosecution disclosure can wait until after committal without jeopardising the defendant's right to a fair trial, the prosecutor must always be alive to the need to make an advance disclosure of material of which he is aware (either from his own consideration of the papers or because his attention has been drawn to it by the defence) and which he, as a responsible prosecutor, recognises should be disclosed at an early stage. . . . even before committal a responsible prosecutor should ask himself what, if any, immediate disclosure justice and fairness require him to make in the particular circumstances of the case. Very often the answer will be none. If there was a dispute over the prosecutor's answer which had to be ventilated, it should be resolved before the trial judge . . . . The requirement for a prosecutor to ask himself what justice and fairness demand and then to act accordingly is, however, one of general application and arises from his general responsibility to act in the character of a minister of justice assisting in the administration of justice."

Although the application in the present case has not succeeded, counsel for the applicant has raised a challenge to the admissibility of written statements at the trial taken from, the now deceased accused, Latu Paseka. In an order dated to August 2002 the court indicated that it proposed to rule on the admissibility of the statements in question prior to trial and invited Crown counsel to deal with the matter in her submissions. She has not done so. She may have overlooked the request.

To advance the matter, I now fix a Directions Hearing for Wednesday 29 January 2003 at 9am when I will hear from Crown Counsel on the point just mentioned and fix a trial date.

NUKU'ALOFA: 22 NOVEMBER 2002

JUDGE