By Linny Folau

Mele ‘Amanaki's appeal was allowed in that conviction imposed by the Supreme Court quashed in regards to failing to file her statement of election expenses, when she ran in the 2021 General Election. She was discharged without conviction.

Initially, Justice Tupou at the Supreme Court convicticed and fined her $200 to be paid within one-month or on failure to pay, one-month's imprisonment.

The Appeal Court Justices Randerson, Heath and Dalton in delivering their judgment on 5 October in Nuku'alofa, stated that if not for the late realisation of the consequences of a conviction for Ms 'Amanaki's DFAT scholarship, they would have upheld the conviction for the reasons given by Justice Tupou.

Ms 'Amanaki was a candidate in the 2021 General Election. She was found guilty in the Magistrates Court of one charge of failing to deliver a signed statement of her election expenses within 14-days from the date of the election of the Electoral Act. She accepted that she was required to file the statement by 4.00pm on 2 December 2021 and that she did not deliver it until the following day, 3 December 2021.

She pleaded not guilty and gave evidence that she had tried to lodge the statement at the Election Commission offices on 2 December, but the office was closed.

Ms 'Amanaki also relied on the admitted fact that the Election Commission had accepted the late filing of election expenses by two other candidates in the election at 4.30pm or after the same day but they had not been charged.

The prosecution submitted at sentencing that a fine of $1000 should be imposed but Senior Magistrate Ma'u ultimately discharged Ms 'Amanaki without conviction or any further penalty. He reasoned that Ms 'Amanaki should be treated in a similar fashion to the two candidates who filed late statements of their expenses but were not charged.

Supreme Court sentence

On 11 January 2023, Justice Tupou allowed an appeal by the Police and quashed the order discharging Ms 'Amanaki without conviction. She entered a conviction and fined Ms 'Amanaki $200 to be paid within a period of one month or on failure to pay, one-month's imprisonment.

This resulted in the leave to this appeal was granted on 4 April 2023.

The judges stated Her Honour went on to set out the relevant factual background which was not materially disputed before them.

The 2021 General Election was the fifth occasion on which Ms 'Amanaki had been a candidate for office. She admitted she was familiar with the requirements for filing statements of expenses. The deadline for the relevant statement was 4.00pm on 2 December 2021.

Ms 'Amanaki accepted it was not filed until 3 December 2021 and that it was late in terms of the statutory requirements.

At the same time, Ms 'Amanaki had also provided them with materials directed to previous good character, her academic qualifications and her experience in prominent government and other roles in Tonga, stated the judges.

Scholarship

“Just prior to the adjourned date of hearing, matters took a most unexpected turn. Part of the material provided by Ms 'Amanaki earlier in the week included a copy of a scholarship contract she had entered into with the Australian Department of Foreign Affairs and Trade (DFAT) on 12 September 2022.

“This was after the hearing in the Magistrates Court and before the hearing of the appeal in the Supreme Court. The contract was produced to this Court to show that Ms 'Amanaki was engaged in an important course of education at Sydney University over a four-year period. It had not been produced in the Supreme Court and it was not until this Court raised the issue on 29 September (the adjourned date of hearing) that Ms 'Amanaki appreciated that the terms of the contract could be very relevant to the outcome of this appeal.

“The Court noted that a clause in the contract empowered DFAT to terminate the contract if she were convicted of a crime. The consequences of this could be severe as the value of the contract was AUD 295,271 over a four-year period. Ms 'Amanaki has completed only the first year of PhD research designing a legislative model to reduce rates of Non-Communicable Diseases and youth unemployment in the Pacific with a focus on Tonga,” they stated.

Late realisation

"But for the late realisation of the consequences of a conviction for Ms 'Amanaki's scholarship, we would have upheld the conviction for the reasons given by Justice Tupou. Before the Magistrate neither side had sought or suggested that a discharge without conviction was appropriate. In consequence, the parties did not address the relevant authorities and the Magistrate did not refer to or apply the principles applicable under s 204 of the Criminal Offences Act. We would have agreed with Justice Tupou that an order for discharge without conviction was not appropriate.

“Despite a lack of previous convictions, Ms 'Amanaki was no stranger to the electoral process and was well aware of its requirements. She ought to have made it her priority to deliver the statement of election expenses within time on 2 December 2021 but did not do so. We agree with the judge below that strict compliance with electoral law is important in the public interest given the constitutional significance of the electoral process."

The judges stated while they agree that compliance with the requirements of the Electoral Act is important, the breach in this case was relatively minor.

"Ms 'Amanaki had tried to file her expenses statement on due date but in the end this did not occur until the following day. She has no prior convictions and is now engaged in high level research which is intended to benefit the Pacific and the Kingdom of Tonga in particular.

“We are satisfied that these consequences would be wholly disproportionate to the seriousness of the offending and that the proper course is to grant a discharge without conviction under s.204 of the Criminal Offences Act. We are confident that if the consequences of a conviction in terms of the scholarship contract had been drawn to the attention of Justice Tupou, in the Court below, she would likely have reached the same conclusion.”

“The appeal is allowed, the conviction entered in the Court below is quashed. The appellant is discharged without conviction on the charge of failing to file her statement of election expenses within 14-days, contrary to s.24( 4)&(5) of the Electoral Act, ruled the Appeal Court.”