"Quashing an indictment - is NOT the same as acquitting a defendant", Justice Robert Shuster stated in an 11 page document titled "Clarification of the reasons for quashing the indictment in file CR64-2010" - the perjury case brought by the Crown against Ramsay Robertson Dalgety.

In the statement Justice Shuster capitalised the word "NOT".

The detailed document issued on November 4 but released to the press today, stated that it is accepted practice in Commonwealth Jurisdictions that if an indictment is quashed the defendant may be committed again for trial by going through the committal procedure again from the start.

"But I stress that is entirely a matter for the Crown," said Justice Shuster.

Appeal

Meanwhile, the Solicitor General 'Aminiasi Kefu, the Crown Counsel in this case, told Matangi Tonga Online today November 9, that the Crown would appeal against Justice Shuster's ruling of November 1.

The ruling had allowed a pre-trial application to quash the indictment preferred against the defendant Ramsay Robertson Dalgety on 23 April 2010, alleging a crime of perjury in giving evidence before the Ashika inquiry.

The Solicitor General said the Crown wanted to appeal because it still retained the belief that "the judge's ruling to quash the indictment was wrong. And in the interest of future cases we need certainty from the Court of Appeal."

Ruling

Justice Shuster also clarified that this ruling applied to only the Dalgety case, since this was the only file where he as a trial judge, found an indictment with no stamp, no date and no signature.

He stated that in relation to other pending cases before the Supreme Court, all other indictments to his knowledge had been properly filed in the Supreme Court Registry.

At the same time he confirmed further, that they had been all stamped, dated and signed by a member of the Supreme Court staff, an Officer of the Court.

Dalgety case

Justice Shuster said the Dalgety case was the only file where he found an indictment on file with no stamp, no date and no signature on the indictment or a record of the defendant's election and plea recorded with the judge's signature and date to that indictment.

He said the court accepted the fact that the defendant was arraigned before former Chief Justice Ford and the defendant elected to be tried by judge sitting alone.

"This is evidenced by my looking at the front cover of the file containing the evidence in this case. This court recognises CJ Ford's hand," he said.

He also said the court was certain that the Tongan indictment found and contained in this case was not signed, dated or stamped as being filed in the Supreme Court.

"This court is certain that the former Chief Justice had not recorded the defendant's election or the defendant's plea or dated or signed the Tongan indictment himself as an officer of the court as was his usual practice," he added.

"Perhaps there was another indictment but this court cannot be sure - because there is no other copy contained in this file."

Justice Shuster stated that it had never been the practice as it may be in other jurisdictions to record and keep separate from the evidence file - the indictment.

"In my view this should be done, the indictment separately filed and properly recorded, away from the file containing the evidence upon which a defendant is committed," he stated.

Justice Shuster then referred to his oral ruling on Monday November 1. "My ruling quashing the Unsigned and Undated Indictment put on 27 April 2010 - applies to file CR64/2010 only that is the case of R v Dalgety".

However, he stated that from 20 October 2010 a Practice Directive No 1 of 2010 applied to all future indictments presented in the Supreme Court of Tonga.

"And as I indicated in my oral ruling that practice is not and cannot be applied retroactively".

Challenged

He acknowledged that the Crown Counsel 'Aminiasi Kefu had argued forcefully that the practice had always been in Tonga that indictments were neither signed nor dated.

"The counsel said there were hundreds of cases and this is a sovereign state, which of course the court fully accepts.

"It may be that in the past that the validity of an indictment had not been challenged, however in this case, the defendant has challenged the validity of the indictment against him, as his legal right or any other right of any man."

Justice Shuster added for the court to ignore a challenge to an indictment against any man saying it had always been done in that way would in his respectful view be completely wrong.

"All sides in this case and particularly the Crown were on notice of such a challenge to the indictment because they had all the papers," he stated.

"The law applies to everyone, in arraigning a person in Tonga or anywhere else in the world the presiding judge has a duty to ensure fairness to every accused."

He said that upon arraignment it was essential to ensure that there was a valid committal from Magistrate to Supreme Court or higher court, and that the indictment was valid and the defendant clearly understood the nature of the charge or charges against him.

He stated that the Tongan indictment contained in this case was undated and was unsigned and of particular importance to the court was the fact the Tongan indictment had not been stamped using the Supreme Court Seal.

He said his finding was that the Tongan indictment had not been dated or signed by a court official on its front page in the top right hand corner as usual practice.

That single indictment was the only indictment contained in our court file and this finding is in my view extremely important to the outcome of the defence application to quash the indictment to have been filed on April 23, 2010, said Justice.

An amended indictment was filed on October 12, 2010 in which the court refused leave to re arraign the defendant.

Constitution

He pointed out powers under Section 89 of the Constitution the judges shall have the power to direct the form of indictments to control procedure of the lowers courts and to makes rules of procedure.

Justice Shuster said the court received on October 27, 2010 submissions from counsel for the defendant together with authorities supporting their motion to quash the indictment laid against the accused.

"There were 300 pages of counsel's submission filed on that date in their attempt to quash the indictment against the defendant," he said.

Justice Shuster also noted that on the English translation of the Tongan indictment the court had commented that the indictment should not have contained the title 'Lord' or shown the defendant's qualification or standing as a Queens Counsel.

"It is well established that an indictment should not show a defendant's title more particularly his qualification as a Queens Counsel - ostensively because all men are equal -before the law," he stated.