Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Tu'ivai v Lokotui [2005] TongaLawRp 6; [2005] Tonga LR 178 (9 February 2005)

IN THE SUPREME COURT OF TONGA

Tu'ivai

v

Lokotui

Supreme Court, Nuku'alofa
Webster CJ
CV 741/2004

1 and 3 February 2005; 9 February 2005

Practice and procedure – application for judicial review and certiorari –refused

Magistrates' powers – adjournment – judicial review of decision – Magistrate's decision upheld

On 20 October 2004 the defendant, Magistrate Lokotui, made a decision to allow the prosecution a further adjournment of the Preliminary Inquiry [PI] in the criminal cases against the plaintiff and others (Nos 692-6/03). The plaintiff, 'Amini Tu'ivai, applied for judicial review of that decision. The plaintiff claimed that the PI was adjourned several times since December 2003. He sought an order of certiorari quashing that decision. On 18 November 2004 the Court granted the plaintiff leave to make the application, but refused leave for the plaintiff's accompanying application to strike out and/or dismiss all the charges in the criminal proceedings against the plaintiff and his 2 co-accused. The plaintiff's application was brought on four grounds, set out at para 8 of his Statement of Claim: that the defendant's ruling allowing an adjournment was void and invalid and/or ultra vires and had no legal effect, as it was (1) unreasonable; and/or (2) in breach of the principles of natural justice and fairness; and/or (3) it was made on wrong points of law; and/or (4) it was also based on wrong points of fact.

Held:

1. The Court found that it was quite clear from the transcript of the hearing on 20 October that the points of substance raised by the plaintiff with the defendant were considered and accurately reflected in the transcript. Therefore the Court found that the defendant had properly considered the points submitted by the plaintiff before coming to a decision.

2. The Court did not find that the defendant had been in breach of the principles of natural justice or procedural fairness, so as to amount to a procedural impropriety.

3. In relation to abuse of process in committal proceedings, the powers of magistrates must be exercised very sparingly and only in the most obvious circumstances which disclosed blatant injustice. The Court did not find that there was blatant injustice. There had therefore been no abuse of process by the defendant in arriving at his decision.

4. The Court found that there had been no illegality, as the defendant had not made his decision on wrong points of law.

5. Traditionally, courts have been reluctant to examine alleged factual errors by way of judicial review; and generally such errors would be reviewed only on a basis analogous to abuse of discretion, namely, that the evidence did not reasonably support the decision or that no reasonable tribunal could have reached the same conclusion.

6. The Court found that there was no mistake of fact so the ground of challenge on irrationality did not succeed.

7. In relation to applications for adjournments, the fundamental principle of natural justice was that a party had to be given a reasonable opportunity to prepare his or her case. A Magistrate had to exercise discretion in a judicial manner; and was not entitled to punish the prosecution for delays or inefficiency by dismissing the information.

8. Overall the Court found that, in reaching his decision on 20 October, the defendant had taken into account all relevant factors and had not taken into account any irrelevant factors, so on that basis his decision could not be said to be unreasonable. Nor could it be said that his decision was so absurd that no sensible person could ever dream that it lay within the powers of his authority, nor that it was so outrageous that no sensible person could have arrived at it; especially as the decision included the injunction that it was the final adjournment and there was ample time for the case to be ready by the hearing.

9. The plaintiff did not succeed in establishing any of the three heads for control by judicial review (illegality, irrationality or procedural impropriety), therefore his claim failed and his application for certiorari was refused.

Cases considered:

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223

CCSU Minister for the Civil Service [1984] 3 All ER 935

Clayton v Chief Constable of Norfolk [1983] 1 All ER 984 (HL)

Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC 14

Harrington v Roots [1984] 2 All ER 474 (HL) HK (an infant), In re [1967] 1 All ER 226 (DC)

Kanda v Government of Malaya [1962] AC 322 (PC)

Mahon v Air New Zealand Ltd [1984] 3 All ER 201 (PC)

Murdoch v New Zealand Milk Board (1982) 2 NZLR 108

R v Canterbury and St Augustine's Justices, ex p Klisiak [1981] 2 All ER 129 (QBD)

R v Canterbury and St Augustine's Justices, ex p Turner (1983) Crim LR 478

R v Filimoehala [1997] Tonga LR 140

R v Home Secretary ex p Zamir [1980] 2 All ER 768 (HL)

R v Sutton Justices ex p DPP [1992] 2 All ER 129

R v Telford Justices ex p Badhan [1991] 2 All ER 854 (QBD)

R v Vaiangina [1990] Tonga LR 118

Ridge v Baldwin [1963] 2 All ER 66 (HL)

Russell v Duke of Norfolk [1949] 1 All ER 109,118 (CA)

Stevenson v United Road Transport Union [1977] 2 All ER 941 (CA)

Plaintiff in person
Counsel for defendant: Ms Simiki

Reserved Decision on Application for Judicial Review

Preliminary

The Plaintiff, 'Amini Tu'ivai, applied for judicial review of the Defendant, Magistrate Lokotui's, decision on 20 October 2004 to allow the prosecution a further adjournment of the Preliminary Inquiry [PI] in the criminal cases against the Plaintiff and others (Nos 692-6/03). The Plaintiff claims that the PI has been adjourned several times since December 2003. He seeks an order of certiorari quashing that decision.

On 18 November 2004 I granted the Plaintiff leave to make this application, but I refused leave for the Plaintiff's accompanying application to strike out and/or dismiss all the charges in the criminal proceedings against the Plaintiff and his 2 co-accused.

This is an important case because I am not aware of a decision by a Magistrate in relation to adjournment of a PI having previously been challenged in Tonga by way of judicial review, yet it is very clear from the authorities that challenges of such decisions of the lower courts in Britain have been frequent: see eg the cases cited in Gordon, Judicial Review: Law & Procedure (2nd Ed), para 10-010 -Applications for adjournments.

Evidence and submissions

The Plaintiff relied on his affidavit dated 25 January and supplementary affidavit in reply dated 31 January. The Defendant relied on his affidavit dated 25 January with annexures.

Although I had made it clear that this hearing would be on affidavit evidence only, at the start of the hearing the Plaintiff also sought to call a witness, but subsequently withdrew that application.

I heard submissions for both parties and was referred by each to various legal authorities.

Primary facts

The principal relevant primary facts in relation to this application are as follows:

By way of background, the criminal proceedings in question have been brought against the Plaintiff and 2 other accused, Hon Veikune and Mr 'Aisea To'a, arising out of goods imported from Fiji. The offences are alleged to have taken place in September 2003 and the charges, which include allegations of bribery of a Government servant, conspiracy and knowingly dealing with forged documents, were brought on 2 December 2003.

The matter was set down for a PI before Magistrate Mafi early in 2004, but adjourned to 9 June 2004, when it came before Magistrate Tatafu and the Police prosecutor sought an adjournment. The record of that hearing showed that on that occasion the Police prosecutor said:

"Chairman, if by the 20/10/04 and that the works on these cases are not yet completed and the charges shall all be withdrawn."

In reply Magistrate Tatafu had stated:

"... it is fair that these cases are to be adjourned to the 20/10/04 as to the request of the prosecutor and if by that time comes and the prosecutor's works are not yet ready, and it is for him to withdraw the charges."

The hearing on 20 October 2004 was before the Defendant, who had not previously been involved in these cases. The Plaintiff states in Para 21 of his affidavit of 25 January:

"21. I submit that when entered the court and found out that the defendant is the chairman for that day I thought my prayer is answered as I know that he is one of the Magistrates that always straightening the police prosecutors when they abuse the process and I hope that he will do the same thing that day. The Magistrate was sitting in the last hearing is an ex-police officer and even he is a Magistrate now but I did know for sure that he was to rule in favour of the Police."

At the hearing the Defendant had before him 2 letters, one from the Counsel for the co-accused Hon Veikune, Mr Tu'utafaiva, who was at that time engaged in a lengthy jury trial at Vava'u. The translation of that letter is:

"Re: Hon Veikune

We act for the above mentioned accused.

The reason for this request is if you could convey to the Magistrate my application to adjourn the matter to a date which is convenient to the Prosecution and its witnesses due to a trial which is heard before the Supreme Court in Vava'u.

Yours sincerely

Siosifa T Tu'utafaiva"

The other letter was from the Police prosecutor. The translation of that letter is:

"Re: Letter of Application to Adjourn the matter between the Crown and Hon Veikune and Amini Tu'ivai, 'Aisea To'a

With respect I would like to convey this request.

The reason of this request is to ask to again adjourn the court case that is mentioned above to the month of February 2005 so that the inquiry can be carried out. The reasons for this request.

1. the request for assistance through the Mutual Assistance in Criminal Matters 2003 to Fiji to obtain the original documentary evidence to become evidence in this trial. There was a problem due to the changes in the portfolio of Attorney General (AG) for the request must be made by the Attorney General.