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

NO. AM 07/06

‘ALEKI FUNAKI & ANOR

-V-

POLICE

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr C. Edwards for the appellants and Mr A. Kefu for the respondent 

Dates of submissions: 16 October and 6 November 2006
Date of judgment: 13 December 2006

JUDGMENT

Background

[1] By agreement the two appellants have had their appeals dealt with together. Both were convicted in the Magistrates' Court at Nuku'alofa on 8 August 2006 on two charges each. The first charge was one of disobeying the lawful orders of a police officer contrary to section 35 (1) and (2) of the Police Act (Cap 35). The second charge was one of obstructing a police officer acting in the execution of his duty, contrary to section 113(b) of the Criminal Offences Act (Cap 18). On the first charge each appellant was convicted and discharged. On the obstruction charge each appellant was convicted and fined $200. The appeals are against the convictions only.

[2] The cases arise out of what counsel for the respondent described as a "stand-off" between police and marchers at the commencement of a large protest march held in Nuku'alofa on 1 June 2006. The court was told that 34 other cases arising out of the same incident have been adjourned in the Magistrates' Court pending the outcome of this appeal.

[3] The first day of June was also the opening day of the 2006 Session of Parliament. Traditionally in recent years the opening of Parliament has taken place at Queen Salote Memorial Hall on Taufa'ahau Road at 10:30 a.m. and following the official opening by the King, or in this case the Princess Regent, there is a procession from the Memorial Hall along Taufa'ahau Road through the centre of Nuku'alofa to the Royal Palace. Schoolchildren from throughout Tongatapu participate in the procession. It is a joyous and colourful occasion watched by many spectators, including tourists.

[4] The other large march planned for the same day had been organised by the representatives of the people in the Legislative Assembly and the Executive Committee of the Public Service Association. This march was scheduled to follow a similar route to the school childrens' march except that it would commence at a sports stadium and other points along Taufa'ahau Road slightly further out from the central city than Queen Salote Memorial Hall.

[5] The people involved in this march were proposing to present a petition to His Majesty the King at the Royal Palace. The petition sought political reform. The appellants contend that the march itself was an exercise of their constitutional rights under clause 8 of The Act of Constitution of Tonga and counsel for the respondent concedes that this was, indeed, the position. Clause 8 provides:

"8. All people shall be free to send letters or petitions to the King or Legislative Assembly and to meet and consult concerning matters about which they think it right to petition the King or Legislative Assembly to pass or repeal enactments provided that they meet peaceably without arms and without disorder."

The factual scenario

[6] The record of evidence in the Magistrates' Court shows that, sometime prior to the day in question, the Acting Commander of Police, Mr Kainga Hia, had been instructed to oversee both the official opening of Parliament and the safety of the students involved in the schoolchildrens' march. Then on the day before the opening of Parliament he learned, for the first time, about the proposed petitioners' march which the Minister of Police had authorised to commence at 1400 hrs. The commencement time of 1400 hrs had been announced "repeatedly" over the television. It was anticipated that by then the school childrens' march would have been completed. 

[7] It appears that what then happened on the day of the march was that the petitioners wished to commence their march prior to 1 p.m.. The police also discovered, for the first time, that heavy vehicles would be participating in the petitioners' march. One of the heavy vehicles that figured prominently in the evidence was a motorcycle towing a "mobile mortuary".

[8] The prosecution evidence was that the police became concerned over the safety of the school children who were still participating in their march at that time and over the inevitable congestion that would result in Taufa'ahau Road should the petitioners' march be allowed to proceed prior to the allotted time. The police endeavoured to stop the petitioners' march from proceeding prior to 2 p.m. but they were unsuccessful. The Acting Commander then gave directions to have the petitioners' march diverted from Taufa'ahau Road onto Fatafehi Road which would allow the petitioners to reach their destination without, however, passing through the main thoroughfare of Nuku'alofa.

[9] The charges of disobeying a lawful order given by a police officer and of obstructing a police officer in the execution of his duty arise out of the skirmishing which followed on from police attempts to enforce these orders.

Grounds of appeal

[10] The grounds of appeal are lengthy and unstructured. I am obliged, however, to counsel for the respondent for condensing them under four heads which appear to accurately reflect and summarise the issues raised. Those heads, essentially, are:

1. The opening address was prejudicial;
2. There was insufficient or no proper evidence to support the conviction;
3. The convictions were bad for duplicity and double jeopardy, and
4. The appellant's rights under clause 8 of the Constitution had been breached by the prosecution. 

I will deal with each ground seriatim.

The first ground of appeal

[11] The first ground of appeal is that the police prosecutor's opening statement was prejudicial. No authority was cited in support of this ground of appeal but appellants' counsel submitted:

"The opening submissions of the prosecutor were highly prejudicial and introduced evidence or background information which was not connected or relevant or applicable to the appellants' cases but nevertheless provided an unfavourable background which was likely to influence or did influence the decision to convict."

Mr Edwards later described the same submissions as, "chaotic, irrelevant and prejudicial."

[12] In response, Mr Kefu submitted that the magistrate was experienced enough to ignore any prejudicial comments made by the prosecutor in his opening statement and his decision was based on the evidence given in court, not on the prosecutor's opening address.

[13] An opening speech in a summary trial is intended simply to allow the prosecutor to tell the magistrate what the case is all about and the nature of the evidence that will be produced in order to try and establish the defendant's guilt. It should be persuasive but not overtly argumentative. The prosecutor's opening statement in the present case was unusually and unnecessarily detailed and it fell into the trap of overstating the prosecution case. The prosecutor, for example, purported to give verbatim quotations from the proposed Crown witnesses. For obvious reasons, that is always an unwise practice. More often than not, the witnesses simply do not come up to brief and the words quoted in the opening statement will end up either not being said at all or distorted beyond recognition. That is what happened in the present case.

[14] Having said that, the appellants were represented at the hearing by a very experienced counsel and it was always open to him to object if he considered that the prosecutor had overstepped the mark in any particular respect. He did not take objection, however, and, in any event, I am satisfied that the learned magistrate reached his decision on the merits without being unduly influenced by the prosecutor's opening statement. This particular ground of appeal is, therefore, dismissed.

The second ground of appeal

[15] The second ground of appeal is that there was insufficient or no proper evidence to support the conviction. This ground of appeal is essentially an attack on the magistrate's findings on the facts. In Fakaanga v Moala [2004] TOSC 6, I made the following observations in relation to an appeal against the factual findings of a magistrate:

"It has often been said in this court that any litigant attempting to appeal a judgment of the Magistrates' Court on the facts alone faces a formidable task. Such an appeal will succeed only in the clearest of cases. This court will not interfere unless, in the language of Finnigan J. in Lasolo v Palu (unreported) C.App 855/98, judgment dated 15 January 1999, it can be shown that the magistrate has "gone off the tracks." That general principle continues to apply."

[16] In R v Sekope [2002] TOSC 25, Ward C.J. said:

"It is well established that an appellate court will only interfere with a lower court's findings of fact if it is satisfied that no reasonable court properly directed could have reached such a conclusion. It will not simply substitute its own opinion for that of the lower court."

[17] In a case like the present, where one of the appellants gave evidence thus raising issues of credibility, unless the appellants can point to some clear error of principle, the magistrate 's findings of fact will almost invariably be left alone.

[18] In support of this particular ground of appeal, the appellants have referred in some detail to what they describe as "conflicts and discrepancies" in the evidence and examples of such conflicts and discrepancies are itemised in counsel's submissions. But conflicts and discrepancies in one form or another abound in virtually every case based on oral evidence and it is the function of the presiding judge or magistrate to work through those conflicts and discrepancies and then reach his or her conclusions as to where the truth of the matter lies.

[19] An appellate court dealing with an appeal based on factual findings is not concerned with such minutiae. An appellate court is concerned only with the broader picture and with whether an appellant is able to demonstrate that the magistrate has in some material respect made such a basic error of principle that his decision cannot be allowed to stand. Nothing like that has been established in the present case. Mr Kefu submitted that there was proper and sufficient evidence for the learned magistrate to rely on in order to convict the appellants on both counts. I agree with that observation. This ground of appeal, therefore, also fails.

The third ground of appeal

[20] Another of the appellants' grounds of appeal is that the convictions are bad because of what they refer to as "duplicity and double jeopardy." The basis for this particular ground of appeal is said to be that the two charges faced by the appellants were based on the same factual circumstances. Counsel complained that the appellants had, thus, "been convicted twice for the same thing." No authority was cited in support of the submission.

[21] In response, Mr Kefu submitted that the two charges, one under the Police Act and the other under the Criminal Offences Act were intended to deal with two different situations. Under the Police Act, the charge was disobedience to a lawful order given by a police officer whereas the charge under the Criminal Offences Act was one of obstructing a police officer acting in the execution of his legal duty. Thus, submitted Crown counsel, there was no duplicity or double jeopardy.

[22] The expression "double jeopardy" when used in the context of the submission being put forward was considered by the High Court of Australia in Pearce v The Queen [1988] HCA 57. In that case, the appellant broke into the victim's home and beat him. He was convicted on two charges arising out of the single episode. The first count was maliciously inflicting grievous bodily harm and the second count was breaking and entering a dwelling house and while therein inflicting grievous bodily harm on the same victim. The appellant contended that at common law a person could not be convicted of different offences in respect of the same or substantially the same set of facts.

[23] The High Court held that although the facts giving rise to the charges were generally the same, there was a clear distinction in the essential elements required to be established in order to prove each offence. As Kirby J. expressed it at [125]: "There is jeopardy; but it is not double because the offences are not legally the same."

[24] In their joint judgment, McHugh, Hayne and Callinan said [30-31]:

"The decision about what charges should be laid and prosecuted is for the prosecutors. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily. There was, however, no abuse of process in charging this appellant with both counts. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused . . ."

[25] Those principles are of general application and they are equally applicable to the criminal law in the Kingdom. The two charges in the present case are quite distinct and they involve the consideration of different essential elements. The appellants themselves attempted to highlight the different elements required to be proved in relation to each charge in paragraphs 18 and 31 respectively of their submissions. There is no substance in this ground of appeal and it is, accordingly, dismissed.
The fourth ground of appeal

[26] The final ground of appeal alleges that the police action was in breach of the appellants' constitutional rights. The thrust of this ground of appeal appears to be, as Mr Kefu in response succinctly summed it up, the claim that, "the police had abrogated the rights of the appellants under clause 8 of the Constitution to petition the King by attempting to stop the vehicles from travelling down Taufa'ahau Road, and also limiting the petitioners to march at 2 p.m."

[27] Mr Edwards submitted that the petitioners, including the appellants, had a constitutional right, "to meet peacefully and to use the public road" and it was the actions of the police in disturbing and disrupting the march that created the confrontational situation.

[28] Mr Kefu accepted that a march to present a petition to the King or Legislative Assembly could be included in the wide meaning of the words, "to meet and consult" in clause 8 of the Constitution but he stressed that the constitutional rights under clause 8 were subject to the overriding consideration that the meeting be peaceful and without disorder. Crown counsel submitted that the venue where petitioners decide to meet very much determines the standard to be applied in assessing whether the meeting (in this case the march) is peaceful and without disorder. 

[29] Mr Kefu also accepted that public roads like public parks were common land which all members of the public had an unrestricted right to enjoy but he stressed that, in relation to public roads, different standards must necessarily apply in order to ensure public safety for all users of the road whether it be vehicular traffic, cyclists or pedestrians. Those standards, he continued, have been regulated by the Legislative Assembly in the form of the Traffic Act, the Police Act and the Criminal Offences Act and that legislation gives the police the authority they need to maintain and enforce those standards on public roads.

[30] Finally, Mr Kefu submitted that there was clear evidence in the present case that the police acted as they did in order to:

"(i) protect the school children and other pedestrians on a congested Taufa'ahau Road;
(ii) avoid any obstruction of the use of Taufa'ahau Road; and
(iii) most importantly, maintain order on the road,"

and they had "not only statutory but also constitutional power" to so act.

[31] That submission could have been taken even further. The duties of a police officer arise by both the operation of statute and the common law. At common law there are positive general duties on a police officer which include a duty to enforce the law, to prevent an apprehended breach of the peace or harm to persons and property. The statutory duties include the positive specific duties imposed on every police officer under section 35 (1) of the Police Act to regulate and control traffic, divert traffic when it is in the public interest to do so, keep order on public roads and to prevent obstructions on the occasions of assemblies and processions.

[32] Mr Edwards submitted that the police officers were not "executing a lawful duty" and he relied in this regard on the decision of Hampton C.J. in Hopoi & Fusimalohi v Police [1997] Tonga LR 222. In that case it was held that the appellants had been wrongly convicted of obstructing police officers in breach of section 113(b) of the Criminal Offences Act because, in giving orders to stop a dance, the officers had not been executing their lawful duty. That finding, however, was based on the fact that under the Dances Act (Cap 166) a police officer only of the rank of first-class constable or above could take steps to stop a dance and the officers who gave the order to stop the dance were constables without any rank. Moreover, the case did not involve any apprehended breach of the peace. The constables were acting only to enforce the conditions of the dance licence. Those facts can be readily distinguished from the facts of the present case and I fail to see how the judgment can assist the appellants.

[33] The right of public assembly associated with the presentation of a petition pursuant to clause 8 of the Constitution is not an unfettered right. It is specifically expressed to be subject (relevantly) to the petitioners acting peaceably without disorder. Given the concession made by Crown counsel, it has not been necessary to hear argument as to whether or not the words "meet and consult" in clause 8 are broad enough to encompass a street march. Accepting that proposition, however, I have no difficulty with Mr Kefu's supplementary submission that the standard for determining whether the petitioners are meeting peaceably without disorder will largely be governed by the venue selected.

[34] Obviously, any form of public assembly on a street or highway is likely to result in obstruction. At common law there is no right of assembly on a public road. In McAra v Magistrates of Edinburgh [1913] SC 1059 at 1073, Lord Dunedin said:

"The primary and overriding object for which streets exist is passage. The streets are public for passage, and there is no such thing as a right in the public to hold meetings as such in the streets . . . that does not necessarily mean that anyone is doing an illegal act if he is not at the moment passing along. It is quite clear that citizens may meet in the streets and may stop and speak to each other. The whole thing is a question of degree."

[35] Against that background, it is axiomatic that it behoved the petitioners, including the appellants, to cooperate fully with the orders given by the police in their attempts to keep the peace and maintain order. Only in this way could the appellants be said to be meeting peaceably without disorder. There was ample evidence before the magistrate, however, that the appellants decided, for whatever reason, to disobey the lawful orders of the police officers and to obstruct the officers in the execution of their duty. This court will not condone such behaviour. To submit, as the appellants apparently contend, that clause 8 of the Constitution gave them the right, in the context of the present case, to march in complete disregard of the orders given by supervising police officers is nothing short of fanciful.

Conclusion

[36] For the reasons stated, this final ground of appeal, along with all the other grounds, is dismissed. The convictions in each case stand.

NUKU'ALOFA: 13 DECEMBER 2006

CHIEF JUSTICE