No case to answer in private prosecution of Princess, PM and others [1]
Wednesday, January 22, 2014 - 22:15. Updated on Thursday, January 23, 2014 - 11:10.
'Akilisi Pohiva's private criminal prosecutions against Princess Pilolevu, Tongasat, and two other respondents, suffered from several fundamental flaws, Tonga's Chief Justice Scott stated in dismissing an appeal to have the cases heard in the Supreme Court.
“...there was no case to answer on any of the charges laid. The Magistrate arrived at the correct conclusion and therefore the appeal is dismissed,” Mr Justice Scott concluded in his judgement delivered to the Supreme Court at Nuku'alofa on January 17.
'Akilisi was appealing against a decision made last year by Magistrate Salesi Mafi at the Kolofo‘ou Magistrates' Court to deny criminal charges against the Prime Minister, the Minister of Justice, Tongasat (Friendly Islands Satellite Communications Ltd.) and HRH Princess Salote Pilolevu Tuita to be heard in the Supreme Court.
The private criminal prosecution was launched by 'Akilisi in February 2013 against the Respondents over the payment to Tongasat of some of the proceeds of a 2011 Tonga-China Economic and Technical Cooperation Agreement from the People's Republic of China to the Government of Tonga. However, the Magistrate concluded that there was an absence of evidence to show dishonesty and discharged all four accused Respondents.
Appeal
'Akilisi's appeal, according to Chief Justice Scott, appeared to be based on his own interpretation of the law and judicial procedure.
“It is not the task of the Magistrate to determine guilt or innocence; it is to decide whether the defendant has a case to anwer,” stated Mr Justice Scott. “The burden of satisfying this requirement rests entirely on the prosecution; there is no duty imposed on a defendant to prove anything.”
The Chief Justice noted that the notice and grounds of appeal were “not altogether easy to understand. It seems likely that they were not drafted by a qualified lawyer.”
'Akilisi claimed that the Magistrate had wrongly applied the provisions of the Magistrates' Court Act as amended by the Magistrates' Courts (Amendment) Act 2012, in particular by refusing the appellant's request to allow his witnesses to give evidence during the Committal Proceedings.
'Akilisi also claimed that the Magistrate was biased and had erred in his decision not to commit the respondents for trial in the Supreme Court.
However, Chief Justice Scott in his judgement stated that, “In my view, Mr Pohiva's approach, while advanced in good faith, is misconceived.” He pointed out that the Magistrate conducted a Committal Proceedings, held to determine whether there was sufficient evidence to send the Respondents for trial on the criminal charges laid against them in the Supreme Court. He stressed that the proceedings were not provided for oral evidence to be heard. Had the respondents been committed for trial in the Supreme Court then 'Akilisi would have been free to call his witnesses.
Flaws
Chief Justice Scott went on to state that 'Akilisi's criminal cases against the four respondents suffered from several fundamental flaws:
Firstly, no copy of the Satellite agreement entered into between Tongasat and CECEC referred to in document 112 nor of the 14 July 2008 agreement, nor the 30 April 2009 agreement was produced.
He said that it was obvious from the contents of the agreement of 19 April 2011, merely recorded a payment pursuant to a previous agreement containing all the agreement's essential terms and conditions.
He said that it was clear to him that the appellant had failed to exclude the possibility, “Indeed the probability, that the payment to Tongasat was made pursuant to a perfectly valid inter-governmental agreement and was not, therefore, made 'without color of right' or dishonestly.”
In his conclusion, Chief Justice Scott said that while he accepted that 'Akilisi launched these prosecutions because of his genuine concern at the way these funds had been disbursed, he was satisfied that the evidence that 'Akilisi was able to present, was not such that a jury properly directed could convict.
No case to answer
"In other words, there was no case to answer on any of the charges laid. The Magistrate arrived at the correct conclusion and therefore the appeal is dismissed."
The background to this case as it was related to by the Chief Justice in his decision, began to take shape while Sunia Fili and 'Isileli Pulu were members of Cabinet, from January 2011 to June 2012, when they resigned from Cabinet.
On 19 April 2011 representatives of the Tongan government and the People's Republic of China signed a document, agreeing that the government of the People's Republic would provide the Government of Tonga with "grant aid" amounting to USD$25,450,000 to further develop the friendly relations and economic and technical cooperation between the two countries.
According to the affidavit evidence of Sunia Fili, the government of Tonga received the grant aid from China on 25 May 2011. On 30 May $11.56 million pa'anga was paid to the Ministry of Revenue in respect of tax liabilities of Tongasat and its staff, then the whole of the remaining balance was paid to Tongasat.
Parliament
During October 2012 a motion for a vote of no confidence in the Prime Minister and his government was tabled in parliament, but the motion was rejected by the House.
The USD$25,450,000.00 grant aid from China to Tonga, and how it was disbursed was a part of motion for a vote of no confidence.
The Chief Justice, noted in his decision that "Mr Pohiva told me that after the motion of no confidence was lost he decided to take the matter to court as he had nowhere else to turn."
Private prosecution
On 12 February 2013 'Akilisi launched private criminal prosecutions against the four Respondents in the Kolofo'ou Magistrate's Court,
charging the Prime Minister Lord Tu'ivakano:
- with theft of TOP$18.45m on 20 May 2011, contrary to section 143(a) (b) of the Criminal Offences Act, Cap 18 and contrary to Clause 19 of the Constitution; (82)
- With being an accessory to the theft of TOP$18.45 million on 20 May 2011 contrary to sections 143(a) and (b) of Cap 18 and Clause 19 of the Constitution; (84) and
- With "concurring" with Tongasat to steal TOP$18.45 million on 20 May 2011 contrary to section 143(a) (b) of Cap 18 and clause 19 of the Constitution (86).
Charging William Clive Edwards:
- With abetting theft of TOP$18.45 million on 20 May 2011 contrary to sections 12 and 143 (a) and (b) of Cap 18 and Clause 19 of the Constitution; (88) and
- With "agreeing" (conspiring?) with Lord Tu'ivakano on 20 May 2011 to commit theft of TOP$18.45 million by giving the money to Tongasat contrary to sections 15 and 145 (a) and (b) of Cap 18 (90).
Charging Tongasat Co. Ltd.:
- With two offences of conspiracy and receiving stolen goods contrary to section 143 (a)(b) and sections 148 (1) and (5) of Cap 18. ( Copies of these charges were not included in the Appeal Book.
Charging Princess Salote Pilolevu Tuita:
- with agreeing with Lord Tu'ivakano to steal TOP$18.45 million on 20 May 2011 contrary to sections 15 and 145 9a) and (b) of Cap 18 (92); and
- With dishonestly receiving TOP$18.45 million on 20 May 2011 contrary to sections 148 (1) and (5) of Cap 18.
Concerns
In the appeal judgement Mr Justice Scott also stated that it was far from clear that the monies were public monies as claimed.
“Mr Pohiva accepted that, as a matter of fact, a substantial portion of money spent by the Government of Tonga comes to Tonga in the form of overseas aid.
“Such grants in aid do not form part of the annual budget presented to Parliament for approval.
“It might well be argued that it would be highly desirable for the public to have greater knowledge of the sources and amounts of such aid and the way in which such aid is disbursed.
“It may well be that the obsure way in which these funds were handled (why, for example did Global Trading Company Ltd, receive USD$500,000?) not unreasonably gave rise to concerns but criminal prosecution is not the correct way ‘to satisfy the curiosity and special interest of the people’,” the Chief Justice stated.
“The remaining ground of appeal, which is that the Magistrate was biased, is, in my opinion, a wholly unsubstantitated and deplorable slur on the integrity and reputation of a well respected Magistrate and should not have been advanced.”
The Chief Justice also pointed out that, “Mr Pohiva's impression that the Attorney General could be obliged to conduct his priavte prosecution is mistaken. Rather it is the other way around: if the Attorney General is concerned that a private prosecution may violate the principles embodied in the Crown Prosecution Code then he should wish to consider whether he should take it over and discontinue it,” he stated.