Separate trials will be held in 2020 for Lord Tu’ivakano and two other co-accused, who are charged with Tongan passport offences at the Supreme Court.

Lord Chief Justice Whitten in a ruling on December 3, refused the prosecution's application for a joint trial for Tu'ivakano and two accused, 'Ileana Taulua and ‘Isapela Tu’akoi.

The prosecution had applied for a joint trial because the case against Lord Tu’ivakano are founded on the same facts as the cases of the other two accused.

In addition, the offence alleged against Tu'ivakano was of similar character to the other two and there would be no injustice to him, if the three were heard together by a single jury.

The joint trial application was opposed by Tu'ivakano, through his counsel Clive Edwards.

Edwards confirmed during the hearing that the other two accused did not oppose the application and were content to have their matters heard together. It was therefore only Tu'ivakano who seeks a separate trial.

He argued, if all the charges were heard in one trial, they would total some 28 counts. While, a joint trial would be in breach of the Constitutional declarations (clauses 10-14) and that his client would be duty-bound to question the witnesses for (presumably that is meant to be against ) Taulua and Tu'akoi to ensure that he was not prejudiced by the evidence, among other submissions.

Charges

The Chief Justice said, each of the accused is subject to separate indictments.

Tu'ivakano is charged with (14 counts total); two counts of money laundering, two of perjury, one of making a false statement for the purpose of obtaining a passport, six counts of accepting a bribe as a government servant, two counts of possession of a firearm without a licence and one count of possession of ammunition without a licence.

Taulua is charged with five counts of making a false declaration and one count of possession of an unlawfully issued passport, and Tu'akoi is charged with four counts of making a false declaration and four counts of forgery.

They have pleaded not guilty to all of the counts against them.

Refusal 

The Chief Justice said, in the absence of any statutory provision or authoritative decision in Tonga directly on this issue, the starting point was to identify the applicable law. 

He raised with counsel this fact that there did not appear to be any reported decision in Tonga in relation to a joint trial application such as the instant (as opposed to severance).

From preliminary research the decision in Crane v. Director of Public Prosecutions [1921] 2 AC. 299, which appeared to be long standing English authority for the proposition that a joint trial on separate indictments against a number of accused would be a nullity.

In regards, to breach of Consitution, he did not accept Edwards' submissions to the effect that clauses 10 to 14 of the Constitution precluded a joint trial or that it would be in breach of the Constitutional declarations. Clauses 10, 12, 13 and 14 say nothing on the point, he said.

"The conclusion, I reach on this point is no more than observed above: there is no Tongan statutory or authoritative case law which answers the question."

So to put simply, the prohibition in Crane, against more than one indictment being heard before one jury is determinative, said the Chief Justice.

He then refused the prosecution’s application for a joint trial.

Meanwhile, it is expected that Lord Tu'ivakano will have his trial in February, 2020.