The respondent (Minister) will now be arraigned on this count and another under s.57 of the Act (using threatening langage to government servant) on June 10.

[However, it is understood that the Deputy PM was abroad when Tonga closed its borders in March, and has been unable to return to Tonga.]

Case

The Court heard on January 12, 2019, the incident happened during a police investigation into a stolen cow, and following three police officers retrieving the cow from the property of Faioso Vake, who said he bought the cow from a police officer named Viliami Nusi

The respondent at the time who was (and is) the Minister of Justice is alleged to have telephoned the police officers involved and said: 


"Why did you take Faioso's cow? And stop working like a tough guy before I shoot the shit out of a Police, and had Faioso found you all at his farm, he would have shot the shit out of you." 


After hearing that, it is alleged that the officers felt threatened and decided to stop working on the case for that day because they felt it was unsafe to do so. 


The Chief Justice said, a new investigation team was appointed and on February 2, 2019 the respondent was charged with offences under sections 57 and 65 of the Criminal Offences Act.

On October 22, 2019, at a preliminary enquiry at the Magistrate’s Court, on the said charges, Principal Magistrate Mafi rejected the submission in respect of s.57, but upheld the submission in respect of s.65 and thereby determined not to refer that charge to the Supreme Court. 


Both decisions were appealed.

On March 25 this year, the Chief Justice in a judgment upheld the Principal Magistrate's decision (refusing the no case submission) in respect of the s.57 charge. 


Appeal

Therefore this judgment concerns the Principal Magistrate's decision in respect of s.65.

A hearing was conducted on March 19 but was adjourned part heard, for the Crown to amend the Notice of Appeal. 


The amended notice was filed on April 1, and the appeal proceeded on two grounds, that the Magistrate erred in: 

1. Interpreting s.65 as only applying "to interference with Judicial procedures, which commences only after laying Judicial charges" (paragraphs 19 to 22 of the decision); and 

2. Determining that there was no evidence of ''people cooperating with the accused' or the accused's "state of mind and intention" in relation to any attempt ''which was intended for the achievement of a certain result, to affect the work that was carried out" (paragraphs 23 to 26 of the decision), contrary to s.32 (4) of the Magistrates Court Act.”

The Principal Magistrate had decided that there was no case for referral because he considered that there was no evidence of: 

(a) Any conspiracy or 
any "attempt", referring to intention or the accused's state of mind. 


Counsel for the respondent contended that the Magistrate was entitled to dismiss the charge solely on the basis that there was no evidence of conspiracy. 

The Chief Justice said that submission misreads the opening words to s.65.

“Further, the consideration by the Magistrate of this limb of the section was, and the present supporting submission is, misconceived and irrelevant to the actual offending alleged by the Crown."

Interfere

In addition, the Chief Justice said, the conduct of the respondent, when viewed objectively, had a tendency to interfere with the course of justice in that the language he used was a positive act which, when taken at its highest, was an attempt by him to frustrate an ongoing police investigation into finding the truth as to who had stolen the cow, and he intended for that to be the result.

In light of the information from the three police officers that they felt threatened by what the respondent allegedly said to them and, as a result, discontinued their investigation; the Magistrate should have referred the matter to the Supreme Court for trial.

Instead, the Magistrate undertook an analysis of all the essential elements of the offence and the evidence to prove those elements, in order to determine whether there was sufficient evidence for the matter to be committed, he said.

"While there is nothing wrong per se with that approach, the Magistrate fell into the trap of inadvertently putting himself in the place of the jury in prejudging a case, during the committal hearing; and whether the respondent had the necessary mental element is a matter for a jury and not a Magistrate on a documents only committal," he said.

Decision

The Chief Justice then, after hearing arguments from both the appellant and respondent's sides, and based on principals stated in his 13-page judgment, he considered that the Magistrate erred in the view that s.65 can only apply to 'judicial procedures' meaning after a charge is laid. 


“In my view, the correct interpretation, consistent with and synthesised from the above authorities, is that an offence of attempting to interfere with the course of justice under s.65 may arise where an act occurs:

1. That has a tendency to interfere with the course of justice;
2. and 
with intent to achieve that result; and
3. At any time when proceedings of some kind have been instituted or are imminent or an investigation is in progress which might bring about such proceedings, or if the defendant believes that there may be an investigation which could possibly result in judicial or other legal proceedings (even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency). 


In addition, the Chief Justice submitted since the respondent's position as Minister of Justice, an overseas judge should be appointed to hear the trial. Both counsel agreed this course was appropriate.

He then ordered for the indictment and summary of facts to be filed before or on May 27, before his arraignment.