Tonga's Supreme Court will rule on July 5, on the Crown's appeal against the dropping of manslaughter charges against three policemen who were charged in relation to the death of New Zealand policeman Kali Fungavaka.

After hearing oral submissions on two appeals that were completed today, June 25, Mr Justice Charles Cato reserved his ruling for 9:30am on July 5.

The Crown represented by Sione Sisifa had earlier made submissions against the release of the three police constables, Fatai Faletau, Tevita Vakalahi and Manu Tu'ivai in April by a Magistrate who had found there was insufficient evidence against them. The Crown, however, argued that there was a joint enterprise between the five police officers at the Nuku'alofa Police Station and their alleged assaults on the victim had a compound effect to cause his death.

Apart from the Crown's appeal, the judge also heard another appeal by accused Police Inspector Kelepi Hala'ufia, represented by Palu Taufateau, against the committal of his case for trial at the Supreme Court. Hala'ufia is one of the three accused, including Police Constable Salesi Maile and civilian Semisi Kalisitiane Manu, who remain charged with manslaughter.

Oral arguments

On the first appeal, 'Ofa Pouono who represented Police Constable Tevita Vakalahi said there was no joint enterprise in particular on his client's part because he was at the charge office tending to the victim's cousin Tavake who  they arrested outside Time Out bar. He said there was no common purpose as he was there carrying out his duties. 

The judge questioned if he agreed that if a jury was to hear the evidence that described alleged actions of the accused, "You wouldn't say this is legal policing in Tonga?" The defense counsel said no.

The judge then asked the counsel why couldn't a jury under those circumstances draw inferences that these concerted actions at the police station in which all the accused allegedly got stuck into and assisted one another to subdue the man. The counsel answered his client was not part of a joint enterprise as he did not tend to the victim but was present doing his job to another man and the police officers had different tasks on that night.

The defense counsel also argued that the evidence provided by a Crown witness who was inside one of the cells on that night was unreliable and was not consistent with other Crown witnesses.

Committal

On the second appeal, Taufateau, the counsel for Hala'ufia submitted her position that the procedure during the Preliminary Inquiry at the lower court was deficient since they were denied a chance to call evidence as provided under the former Magistrate's Court Act.

But Justice Cato expressed his concern with the fact that she did not tell the Magistrate that she wanted to call evidence, she had the oppotunity but she failed to do so. 

The counsel told the judge that she had in her written submission raised this matter. But the judge told her this was done after the hearing, she should have done it during the hearing. 

The other two accused Faletau and Tu'ivai had no legal representation in court.