The trial of former Prime Minister Lord Tu‘ivakano, who is facing multiple charges in relation to passport offences, began on Monday 10 February and a jury has been selected and sworn in at the Nuku'alofa Supreme Court.

Argument on an application by the accused on a point of law, then ensued in the jury's absence yesterday. The Lord Chief Justice M. H. Whitten QC completed his ruling overnight in order for the trial to resume today, Tuesday.

He found that Lord Tu'ivakano as a Minister of the Crown was not above the law, in particular Section 50 of the Criminal Offences Act.

An amended indictment filed by the Crown on February 7, included five counts of accepting a bribe as a Government Servant contrary to s.50 of the Criminal Offences Act.

The Act provides that every person employed as or acting in the capacity of a Government Servant who shall demand or accept rewards to do, or abstain from doing, his duty shall be liable to imprisonment for up to 3 years.

However, defence counsel, William Clive Edwards, applied for a ruling on whether s.50 of the Criminal Offences Act could apply to the accused, as he was a Minister of the Crown at the time of the alleged bribery offences under that provision. 

After hearing arguments on February 10 the Chief Justice ruled this morning that “...the answer is that it does.”

Arguments

"Edwards submission may be condensed to one central proposition, that because the accused as a Minister of the Crown at the time was excluded from the application of the Public Service Act (PSA), he is therefore not a person to which s.50 of the Act can apply.”

The Lord Chief Justice rejected the accused's argument.

The Crown submitted, that in framing the bribery on the indictment, the Crown relies on the second limb of s.50 namely that the accused was acting in the capacity of a Government servant, not that he was employed as a Government servant. 

The Lord Chief Justice in his ruling on the application stated that a prime principle of statutory interpretation is a presumption that the legislature intended to pass legislation that would work. The whole statute must be considered and not just the words being interpreted.

“Another prime principle in statutory construction is common sense. ...Parliament is presumed not to have intended to legislate in a manner which is absurd,” he stated. The court had regard to the evident purpose of this part of the Act and the mischief or vice it was intended to address.

Question

The Lord Chief Justice also said, the question arises “whether Ministers of the Crown act in the capacity of serving the Government?”

There was no doubt that for the performance of their ministerial functions, or service to the government, ministers of the Crown are paid salaries and other entitlements by Government.

“It follows as Edwards conceded during argument that if a minister is wrongly denied his or her salary or other entitlements, he or she has a right of action against the Government for recovery of same.”

“The performance by the accused of his functions, when he was Minister of Foreign Affairs included, inter alia, the exercise of discretion in approving applications for passports as conferred by and in accordance with the Passport Act. Every statute represents the will of the Government. Therefore in the performance of his statutory functions...the accused was serving the Government,” he ruled.

“In my view it is at least arguable that Ministers of the Crown are employed to serve the government; and, they certainly act in the capacity of servants of the Government.”

Trial resumes

The trial of Lord Tu'ivakano, also known as Ngalumoetutulu Kaho, proceeded this afternoon, with the accused being arraigned on ten charges, mostly passport related offences, to be tried over the next four weeks before a jury.