An appeal against a Magistrate decision, which granted a bail variation to the Minister for Justice Hon Vuna Fa’otusia allowing him to travel outside of Tonga, was dismissed by a Supreme Court judge after finding the appeal was misconceived and had not merit.

The Minister has been charged with wrongful interference with the course of justice and using threatening language to police officers in a dispute over a stolen cow that occurred on January 12 in Vaini.

He was charged and released on bail on conditions that included being put on the “no fly” list.

The Crown's appeal alleged the Minister’s application to the Magistrate did not follow proper procedure according to the Bail Act.

Hon Mr Justice Laki Niu in a ruling on September 18 said the Crown appealed for two orders that included, a declaration that the Magistrate erred in law when he granted the Minister a variation of bail on an ex parte basis and that the Supreme Court would now determine the bail conditions of his bail and any further application to vary it, under section 5(3) of the Supreme Court Act.

His condition of bail that he must have the leave of the Court before he could travel overseas because he was only requesting the leave of the Court to travel to New Zealand. 

“He was not asking to cancel that condition of his bail. He was therefore not making an application under section 6 of the Bail Act and the Senior Magistrate had therefore made no error in law in granting the leave to the respondent to travel overseas.”

The Crown relied on the provisions of section 5 of the Supreme Court Act as the basis for the order, which provides that the Supreme Court shall have the power to exercise all the powers of the Magistrate's Court. 

The judge, said however, that provision does not mean that the Supreme Court can thereby oust the Magistrate's Court of its jurisdiction duly granted to it by law.

Section 4 of the Supreme Court Act provides that the Supreme Court shall (also) have jurisdiction in any other matter not specifically allotted to any other tribunal.

In addition, section 6 of the Bail Act, specifically allotted the consideration of bail and of the conditions of bail to the Magistrate’s Court or a police officer (except in respect of a person charged with murder or treason) unless it is appealed to the Supreme Court.

Accordingly, the Supreme Court has no jurisdiction to consider the bail or the conditions of the bail of the Minister, unless it is on appeal from the Magistrate's Court. It would therefore be wrong for this Court to make the order sought by the Crown in this appeal, said the judge.

Charge 

The background was, that the Minister was granted bail by the Magistrate Court on his own recognizance of $1,000 on conditions; he was not to leave Tonga without leave of the Court, was not to leave Tongatapu without leave of the Court, was not to commit any offence and he would surrender his passport to the Court.

On May 29, Ministry of Justice CEO wrote to the Chief Magistrate of the Magistrate’s Court and asked for leave of the Court for the Minister to travel to Vanuatu on the following day for work purpose and to return on June 1.

On the same day, the Senior Magistrate of the Magistrate’s Court, without consulting the Police or the Crown Law made an order tha the Restraining Order against the Minister prohibiting him from leaving Tonga is lifted. 

He was then allowed to travel overseas and his passport released to him.

On June 20, a Magistrate Court clerk brought a letter from the Justice CEO to the Chief Magistrate dated June 19 requesting the leave of the Court for The Minister to travel to New Zealand on June 21 and returning June 24. 

The Chief Magistrate was at the lower court in Fasi and because of the urgency, the letter was given to Magistrate Kaufusi.

Magistrate Kaufusi directed that the letter be scanned by email to Crown Law and request that someone from there come to chambers and the clerk did that.

Later, the Chief Magistrate arrived back from court and the clerk informed him of the letter. The Chief Magistrate then directed the letter returned from Magistrate Kaufusi to him. 

The Clerk informed the Chief Magistrate that she had telephoned Crown Law twice for someone to come but still no one came. 

The clerk also told the Chief Magistrate that when she was given the letter to bring to him, she was told that the Court order was needed to be submitted together with the Minister's application to the New Zealand Immigration office before it closes at 1:00pm on June 20.

Chief Magistrate then issued the required order and the application was lodged and the New Zealand Immigration issued the visa and the Minister left for New Zealand June 21 and returned on June 24.

The copy of the letter of the Justice CEO dated June 19 was left in the inward tray of the Attorney General.

When Crown Law received it on June 20, a Crown counsel was directed to attend to it (counsel was away from his office at the time) and did not receive the instruction until after the Chief Magistrate had issued the order.

Upon being informed of the Court’s decision, he was instructed that Crown filed this appeal on the same day.

Argument

The Crown argued that the principle of giving the opposing side an opportunity to be heard, the principle of audi alteram partem was breached by the Senior Magistrate when he granted the approval for the Minister to travel overseas without the Crown, having been afforded an opportunity of being heard. 

He referred to the Supreme Court Practice Direction which requires that the opposing side be notified at least 48 hours before the hearing of an application of a party is heard.

The judge ruled, that principle was sufficiently complied with, his view, when  the Court sought by telephone, twice, that a representative from the Crown Law come over and be heard, in the circumstances of urgency of the matter. 

And the 48 hours rule in the Supreme Court may in appropriate circumstances be varied in accordance with the justice of the case.

"It is clear from the letter of the CEO, copy of which was scanned  to and received by the Attorney General, that the matter was urgent, that approval  be given by the Court, if it was to be given, that day, because the overseas trip was the  following day, June 21 (not 20th as stated in the letter). To me that is sufficient  compliance with the principle of audi alteram partem".