By Linny Folau

Lord Tu’ivakano’s lost his appeal against the dismissal of his malicious prosecution claim against the Police Commissioner, Attorney General and the Kingdom of Tonga in 2021.

The Appeal Court, in a judgment issued today, stated there was no material error in Lord Chief Justice Whitten's decision. They dismissed Tui'ivakano's appeal.

"While we accept the appellant's understandable desire to attempt to repair his reputation, given the seriousness of the allegations made against him, we see no reason not to award costs."

They then ordered him to pay the respondents costs in an amount to be fixed by the registrar if not agreed.

2021 claim dismissed

This appeal was against Lord Chief Justice Whitten's judgment dismissing the appellant's claim for damages against the respondents for malicious prosecution.

In brief, the appellant was charged and tried in the Supreme Court on five counts of accepting a bribe as a Government servant, as well as single counts of money laundering, perjury, making a false statement for the purpose of obtaining a passport, and possession of a firearm and ammunition without a licence.

The trial before judge and jury commenced on 10 February 2020. In the fourth week of the trial, the Crown did not proceed with the bribery and money laundering charges.

The appellant then pleaded guilty to the charge of possession of a firearm but was found guilty on the perjury and false statement charges, as well as possession of ammunition. He successfully appealed against all but one of his convictions.

This Court then acquitted him on the perjury and false statement charges and dismissed the appeal in respect of the ammunition.

The appellant then started a proceeding against the respondents claiming a total of $5.75 million pa'anga in damages for malicious prosecution, with an alternative cause of action based on misfeasance in public office, which was ultimately abandoned.

Tongan passports 

The Appeal Court stated the main focus of the Crown's case against the appellant related to the bribery and associated money-laundering charges.

“The charges arose from the Crown's allegation that the appellant along with others had been involved in a fraudulent scheme to issue Tongan passports for foreign nationals in exchange for money.

“The prosecution case was that Chinese nationals had worked together with two Tongans, Satua Tu'akoi and 'Ileana Taulua, to lodge forged passport applications with the Immigration Division of the Ministry of Foreign Affairs.

“It was further alleged that the scheme was to have those applications approved by the appellant in his capacity as the then Prime Minister of Tonga and Minister of Foreign Affairs in return for payments made by one Sien Lee and his wife Ying Lee as bribes to gain his approval.

“During the investigation, Police Commissioner Stephen Caldwell and the Acting Solicitor-General and DPP at the time, 'Aminiasi Kefu, were regularly briefed on the progress of the investigation.

“Any major decisions during the investigations were reached through consultation between a special crime unit established to investigate passport fraud known as the Serious Organisation Transnational Crime Unit ( SOTCU), the Police Commissioner and Mr Kefu.

“This process continued during 2014 and 2015. By the end of 2017, SOTCU had completed their extensive investigation and delivered

“A number of Government agencies were involved in the investigation including the Police, Ministry of Foreign Affairs and Trade, the Office of the Director of Public Prosecutions (DPP) and SOTCU, said the Appeal Court.”

Respondents act maliciously, for an improper purpose?

The Appeal Court stated, that in an earlier part of his judgment, His Lordship recorded that the appellant had not adduced any evidence to support the proposition that the Police were actively instrumental in making or prosecuting the charges against him.

“It was clear that the Commissioner did not undertake any independent analysis or decision to lay the initial charges, but rather accepted and acted on the legal advice of Mr Kefu. There is no challenge by the appellant on appeal to His Lordship's finding that it was the prosecutors who made the ultimate decision to prosecute and to maintain the proceedings until the entity of the nolle prosequi [will no longer prosecute] during the trial.

“His Lordship correctly stated that the burden of proving that a professional prosecutor acted with malice is a heavy one.

“In the Supreme Court, the appellant had pleaded that the Police investigation and subsequent prosecution was politically motivated, relying on the public statements by the late former Prime Minister Mr Pohiva already mentioned and an assertion that the former Minister of Police was responsible for instigating the Police investigation which targeted the appellant.

“His Lordship firmly rejected these allegations on the basis that there was noo evidence tos upport them, stated the Appeal Court.

"To the contrary, there was uncontroverted evidence that Commissioner Caldwell and Mr Kefu were at pains to caution the former Minister and Prime Minister, respectively against making public statements or doing anything which could compromise the investigation and the decision to prosecute and had issued media statements to similar effect, to reassure the general public of the propriety and independence of the investigation."

“In addition, the appellant did not challenge these conclusions on appeal.

“The main basis advanced on the issue of malice was the absence of reasonable and probable cause. In that respect, His Lordship referred to his earlier finding that there was reasonable and probable cause both to bring the charges and then to pursue them at trial.

“He found that, even if there had been no reasonable and probable cause such as to support an inference of malice, he would have tended to the view that the prosecution was more likely to have been the product of inexperience, incompetence or negligence rather than any form of improper purpose or other malice.”

No malice

The Appeal Court said the element of malice in this context required the plaintiff to prove that the sole or dominant purpose to prosecute was one other than the invocation of the criminal law.

"Our conclusions on the issue of reasonable and probable cause mean that the Lord Chief Justice was right to dismiss the malicious prosecution claim on this ground alone, without the need to determine the existence or otherwise of malice."

“Mr Kefu's evidence that he honestly believed there was reasonable and probable cause to commence the prosecution was never challenged.

“In the period after the trial started, the Lord Chief Justice was uniquely placed to assess the impacts on the strength of the Crown's case of the rulings requiring further particulars and declining a joint trial. We see no basis to interfere with his conclusions in that respect.

“Mr Edwards also accepted it was never put to the Crown prosecutors who gave evidence that they had acted improperly or in bad faith. If this proposition were to be advanced, it was essential to allow those accused of such matters to respond to serious allegations of this nature.

“While it is axiomatic that the Crown carries the onus of proof beyond reasonable doubt throughout a criminal trial, where the defendant chooses to give or call evidence, the Crown is fuliy entitled to rely on any admission by the defendant or other evidence in the defence case considered to enhance the prosecution case, stated the Appeal Court.

"To proceed in the hope that some support to the Crown's case could be gained from the evidence of the appellant was not therefore indicative of an improper purpose. We do not accept Mr Edwards' submission that there was any obligation for the Crown to inform the judge of the reasons for the decision to proceed. We also observe that the appellant could have renewed his application for a no case ruling at that point, but did not do so.

“We conclude that no material error in the Lord Chief Justice's decision has been shown and the appeal must be dismissed." stated the Appeal Court judgement.

Clive Edwards represented the appellant with the Solicitor General Sione Sisifa acting for the respondents.