The Court of Appeal of Tonga this morning quashed a decision by the Supreme Court to allow the Crown to file two additional charges of abetment to riotous assembly and abetment to the damage of buildings against each of five accused who were charged in relation to the riots of November 16, 2006.

The five accused People's Representatives 'Akilisi Pohiva, 'Isileli Pulu, William Clive Edwards, 'Uliti Uata and a former PR Lepolo Taunisila, were initially charged with conspiracy to sedition each in connection with the disturbances on November 16, 2006.

They challenged and appealed against the decision made by Chief Justice Anthony Ford in October 2007 in allowing two additional charges to be filed against them.

The Appeal Court sat on 23 July and the judgment was read today by the Chief Justice at the Nuku'alofa Supreme Court

The Appeal Court in quashing the decision of the Chief Justice stated that the question of whether or not the indictment should be amended is remitted to the Supreme Court for reconsideration in the light of their findings.

New hearing date

Crown Prosecutor 'Aminiasi Kefu said this meant the Supreme Court will again have to consider whether the Crown should be allowed to add the two abetment charges (i.e. abetment of riotous assembly and abetment of damage by rioters), and to consider whether there is a prima facie case for the conspiracy charge.

In summary the Supreme Court will have to set a new hearing date to determine the following issues: whether the Crown can amend the indictment to include the two additional charges and whether there is prima facie evidence to support the charges of conspiracy and the two abetment charges, he said.

The remaining count of conspiracy to sedition remains. But the hearing on that will be set after transcripts of a Preliminary Inquiry are completed and translated from Tongan into English.

Insufficient evidence

The Chief Justice after reading the judgment added in light of the present decision the Court of Appeal accepted that the appellants are open to appeal again to quash the remaining charge of conspiracy to sedition due to insufficient evidence given the evidence in the Preliminary Inquiry.

Rodney Harrison who acted for 'Akilisi and 'Uliti had made notice that he does intend to lodge an appeal before Christmas.

Charges withdrawn

The five accused were initially charged with conspiracy to sedition and following a preliminary inquiry at the Nuku'alofa Magistrate's Court, their case was submitted to the Supreme Court for trial. When indictments were filed they included six additional counts of abetment to riotous assembly and destroying of buildings in Nuku'alofa.

On September 5, 2007, the Crown withdrew six of those initial seven charges that it leveled at the five accused, leaving only the sedition charge, allegedly committed between November 13 to 16, 2006. 



However, on September 11, the position changed again and on instructions from the Attorney General the Crown filed two new charges against the five who objected and filed submissions against it.

The Supreme Court declined to accept these indictments without leave, so an application for leave was filed and the result of the Chief Justice's ruling was the one under appeal.

Judgement

The Court of Appeal in their ruling said the important question in this case was whether or not the Chief Justice was entitled to rely on the assurance from the Crown Counsel that a prima facie had been made out at the deposition hearings in regards to the two charges.

"In our view the Chief Justice was wrong in coming to the conclusion."

This is because the CJ relied on a decision by the English Court of Appeal in R v Osieh to determine that it was unnecessary for the court to spend time considering the preliminary evidence.

In making this finding the Chief Justice overlooked the fact that in the Osieh case the additional charges while not disclosed in the PI evidence, were disclosed by evidence subsequently served. The Crown in the present case had provided no such evidence.

Hence, the Court of Appeal accepted the proposition in deciding whether to amend the indictment the judge was exercising discretion and to do so without having access to the evidence which it said disclosed prima facie case couldd not be correct exercise of that discretion.

The Court of Appeal sat in July consisting of Justice Burchett, Justice Salmon and Justice Moore.

Counsel for the appellants Pohiva and Uata was Mr Rodney Harrison QC, while Edwards represented himself, Pulu and Taunisila. Mr Kefu appeared for the Crown.