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Lotonu v R [2003] TVHC 23; HC Crim Case No 22 of 2003 (26 September 2003)

IN THE HIGH COURT OF TUVALU

CRIMINAL JURISDICTION

AND IN THE MATTER OF THE CONSTITUTION OF TUVALU

CASE NO. 22/03

BETWEEN:

MANASE LOTONU

Applicant

AND:

R

Respondent

Before CJ Ward

Hearing: 22nd and 26th September 2003

James Duckworth for the Applicant
Attorney General for the Respondent

The Applicant was charged with two counts of common assault and refusal to leave licensed premises (contrary to s237- Penal Code Cap 8, and 120(2) Alcoholic Drinks Act 1984) following incidents in the Matagi Gali Bar on 30^th May 2002. On 4^th and 11^th July 2003, the Applicant appeared before the Resident Magistrates Court and pleaded not guilty to both counts.

Prior to trial, the Applicant by way of originating summon sought a declaration that his rights under section 22(2) and 22(3) (b) Constitution of Tuvalu -1986 had been breached as he had never been formally charged nor given a fair hearing within a reasonable time.

Section 22 provides:

A person charged with an offence:

.... B) shall be informed as soon as is practicable, in detail and in a language that he understands, of the precise nature and particulars of the offence charged , and if the information is not given in writing it shall be confirmed in writing as soon as is practicable.

In an Affidavit in support, the Applicant admitted that he was cautioned in or about June 2002. He heard nothing further until a summons was served in July 2003. He was never formally charged in his presence nor did he ever receive the signed charge from the Magistrate despite this being done in November 2002. He had been on Funafuti and the Tuvalu group throughout this time.

The Respondent in an Affidavit in reply filed by Sgt Kaipeti Tiale admitted that due to excessive police investigative work, the charge was filed only 5 months after the case took place. He further confirmed that the charge was never served on the Applicant by the Police. Due to delays within the Judiciary system and personnel it would seem that the delay was made worse and was never set down for hearing until July. It was admitted that the lapse of time in bringing up the case for hearing in July 2003 was unreasonable and unfair to the Applicant. This was caused by the failure to serve the charge and delays within the Judiciary.

Judgment:

1. Application allowed;

2. Cases before the Resident Magistrates Court be struck out for failure to serve charges, and for unreasonable delay.

THE COURT.