Appeal Court orders Dalgety indictment be reinstated for trial [1]
Friday, April 15, 2011 - 15:21. Updated on Wednesday, September 11, 2013 - 10:06.
TONGA'S Court of Appeal this afternoon, April 15 ordered that the perjury indictment against Ramsay Robertson Dalgety, commonly known as Lord Dalgety, be reinstated and referred back to the Supreme Court in Nuku'alofa for trial.
The Court of Appeal allowed the Crown's appeal against Justice Robert Shuster's judgement of November 1, 2010 which had quashed the indictment on grounds that it was not dated or signed.
Presiding Appeal judges, Justice Peter Salmon, Justice James Burchett and Justice Michael Moore after a week's sitting at the Supreme Court in Nuku'alofa issued an 11-page judgement on the Dalgety indictment case.
They stated that the Chief Justice Hon Michael Dishington Scott would decided which judge would preside over a further hearing of the case.
Not required to be signed
Justice Peter Salmon said the Appeal Court noted there was no doubt that the practice in Tonga has been that unsigned indictments are filed in the Supreme Court where they are stamped, dated and initiated by court staff, and that practice was followed in this case.
They noted that in New Zealand indictments are not required to be signed by an officer of the court.
"So the practice of filling unsigned indictments is not without precedent," he said.
Justice Salmon also said that provisions of Clause 11 of the Tongan Constitution contained no requirement for the signing and dating of an indictment. Until the recent practice direction by the Chief Justice for indictments to be signed and dated, there was no provision in the rules of Tonga requiring the signing or dating of indictments.
The Court of Appeal judges also pointed out that Clause 89 of the Constitution provides that the judges shall have power to direct the form of indictments, to control the procedure of the lower courts and to make rules of procedure.
"This is the source of the power exercised by the Chief Justice in making the practice direction earlier," they said.
"Thus it can be seen that the Constitution provides all that is needed in Tonga with respect to the form and content of indictments. We can see no need or justification for importing the English practice into Tongan law other than by enactment or practice direction."
No good reason
The Court of Appeal judges made two further observations.
Justice Peter Salmon said, even if the first indictment had been defective that defect was cured by the second one.
"There was no good reason for the judge to prevent Mr 'Aminiasi Kefu from signing that indictment."
He said their second point was that the recent practice direction concerned procedural matters.
"If there is a deficiency or irregularity in an indictment it would not in general make the indictment null. It would be capable of correction. For the above reasons the appeal was allowed and indictment reinstated."
The matter was referred back to the Supreme Court so that the remaining matters could be heard and determined.
Appeal
The Court of Appeal added that none of the statements of fact in Mr 'Aminiasi Kefu's affidavit had been challenged by the respondent other than by reference to the judge's reasons.
The Court of Appeal dealt with the Dalgety appeal on paper with written submissions from both sides.
'Aminiasi Kefu represented the Crown, while the respondents Dalgety and his counsels were not present in court during the announcing of the judgment this afternoon.
Perjury indictment
The perjury indictment related to a statement made by Dalgety in January 2010 at the Royal Commission of Inquiry into the sinking of the MV Princess Ashika.
It is alleged that the perjury came from a reply Dalgety made when questioned by the Counsel Assisting the Ashika inquiry, Manuel Varitimos; and was quoted in the indictment as follows:
"Mr Varitimos: Well do you know what the shareholding in Ocean Pacific Limited is?
Lord Dalgety: I - I can't remember that. It was - it was organised out - I wasn't involved in the organisation of that company."
Dalgety initially appeared at the Nuku'alofa Supreme Court on April 27, 2010 and pleaded not guilty to the perjury charge.
Company secretary
Dalgety was the Company Secretary for the Shipping Corporation of Polynesia Ltd., the operator of the MV Princess Ashika vessel that sank with the loss of 74 lives on August 5, 2009.
A jury found the company was guilty of manslaughter by negligence for the death of one of the two passengers whose bodies were recovered, along with other counts of sending an unseaworthy ship to sea, in a verdict announced on April 1 this year.