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

NO CR 90-92/05

R

v

TU’IVAI, HON VEIKUNE & TO’A

RULING ON ADMISSIBILITY OF HON VEIKUNE’S DIARY

This is my ruling on the submission by Mr Edwards that the search was unlawful and so the diary should not be admitted in evidence.

I am prepared to accept for the purposes of this submission that the search was not within the terms of section 51(1) of the Magistrates’ Courts Act. I have heard further from Counsel this morning on that issue, but I am not going to go into the position in detail.

This is because that is not the end of the story, as Mr Edwards himself conceded in his submission. In put the position is much stronger than that – the Judge has no direction to exclude evidence just because it was obtained as a result of an illegal search. There is high judicial authority for that in the case of R v Sang [1979] 2 All ER 1222 (HL), a case which I believe every counsel and every judge should have at their fingertips. See also Archbold 2005 paras 15-525 & 15-535.

In Sang Lord Diplock said at p 1230:

“A fair trial according to law involves, in the case of a trial on indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt on evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided: it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused’s guilt it is no part of his judicial function to exclude it for this reason.”

The legal position when there has been an unlawful search is different from that of a confession and Lord Diplock gives an interesting explanation of the historical reasons for that (also at p 1230) and concludes:

“That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.”

Now it is clear that the Judge still has a discretion to refuse to admit evidence out of fairness, if in his opinion its prejudicial effect would outweigh its probative value. That was further explained in Scott v R [1989] 2 All ER 305, 311 (PC):

“The phrase ‘prejudicial effect’ is a reference to the fact that although evidence has been admitted to prove certain collateral matters there is a danger that a jury may attach undue weight to such evidence and regard it as probative of the crime with which the accused is charged.”

In this instance I have considered whether to exercise that discretion, but it is likely but the evidence will have high probative or evidential value in relation to the counts in the indictments which will not be outweighed by its prejudicial effect. I also take into account that there is no allegation that the search was conducted oppressively and indeed the procedure of obtaining a warrant from a Magistrate was carried out.

I point out that this is in contrast to the situation earlier in this trial in relation to the e-mails from Fiji, when I exercised my discretion on the basis that they did not have high evidential value. 

In this instance I shall therefore exercise my discretion by admitting Hon Veikune’s diary as evidence.

R M Webster MBE
Chief Justice
19 January 2006