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Attorney-General v Moala [2001] TongaLawRp 23; [2001] Tonga LR 144 (5 July 2001)

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

Cr 72/01 and Cr 78/01

Attorney-General

v

Moala and anor

Ward CJ
28 June 2001; 5 July 2001

Practice and procedure – application for time extension to file affidavits - granted

The Attorney-General made applications to have the respondents committed for contempt of court. The court set a timetable for the filing of affidavits and the time allowed expired. On 5 June 2001 the Court made a ruling in another case that exposed a gap in the evidence in the applications. Counsel for the Attorney-General applied for an extension of time in order to file further affidavits to fill the gap. Counsel for the respondents in each case objected.

Held:

1. The important principle in criminal trials was that the defendant should know clearly the case he had to answer and be unhindered in his right to make a defence if he so wished. In indictable offences amendment to the indictment may be allowed, even at a late stage, as long as it would not cause injustice to the defendant.

2. The nature of the charge the prosecution intended to pursue against the defendants was already clearly stated. The evidence it wished to adduce by the additional affidavits raised no fresh allegation but simply supported the charge already made in the notice of motion and would ensure the court was able to determine the matters in contention.

3. The application was granted. Counsel for the Attorney-General was to file further affidavits within 14 days of the original order on 28 June 2001 and the respondents could file affidavits in reply within 14 days.

Case considered:

Attorney-General v Saulala anors [2001] Tonga LR 110

Counsel for applicant: Mr Kefu
Counsel for respondents in Cr 72/01: Mr Tu’utafaiva
Counsel for respondents in Cr 78/01: Mr Edwards

Judgment

These are both applications by the Attorney-General to have the respondents committed for contempt of court. In both cases, the court set a timetable for the filing of affidavits and the times allowed have now expired.

Following my ruling on 5 June 2001, in the case of Attorney-General v Saulala anors [2001] Tonga LR 110, Mr Kefu, for the Attorney-General has applied, in effect, for an extension of time in order to file further affidavits. The reason is to fill a gap in the evidence similar to that which proved fatal to the application in the Saulala case.

Counsel for the respondents in each case have objected but I have allowed the application to file further affidavits. I stated I would give brief reasons in writing. I now do so.