Tonga’s former Attorney General John Cauchi accepted that the Government of Tonga had created circumstances that forced him to resign, which was the basis of his evidence in chief given at the Supreme Court in Nuku’alofa, on Wednesday November 20.

The second day of a civil jury trial continued to hear claims brought by the plaintiff Cauchi who has filed Causes of Action against defendant the Government of Tonga claiming over AUD$500,000 in special damages and relief for Breach of Contract, Repudiation of Contract and Constructive Dismissal.

Laki Niu questioned his client about his claim that  as Attorney General he was sidelined by government.

Cauchi referred to correspondence with the then government led by Dr Feleti Sevele and referred to the re-appointment of a judge without the recommendation of a Judicial Services Commission.

He said he received a letter informing him that the Privy Council had decided in March 2010 to re-appoint the judge but he never received a copy of the Privy Council or Cabinet decision. “I replied and pointed out that the re-appointment was irregular and it was contrary to conventional practices and could have been unconstitutional,” he said.

Cauchi agreed with his counsel that the Judicial Services Commission had received a complaint against the judge signed by the Tonga Law Society and there was also motion by parliament to impeach the judge.

He said at the end, after an indication that the judge would not seek the renewal of his contract, the matter was to be withdrawn. The judge's contract was renewed and I understand it was made on recommendation from the Law Lords, he said.

Cauchi said that another letter was referred to him in April 2010 regarding the appointment of a new Chief Justice and he was told to disassociate himself from it altogether. “I was accused by the then Chief Secretary about the renewal of the judge’s contract and stated that the issue was under serious consideration by the Prime Minister. I took this as a serious threat to my position and five-days later I resigned,” he said.

In another letter written to the Solicitor General he said that there was an indication that cabinet had decided to abolish the Judicial Services Commission and the Crown Law was directed to draft the necessary legislation.

Sidelined

Cauchi claimed that an example of being sidelined by government was that he was the chair of a Tonga Maritime Border Committee that was responsible for making submissions to the Office of the Law of the Sea.

There were two meetings, recommendations were made to cabinet and both were deferred. “I wrote to the secretary of the committee the Secretary of the Foreign Affairs to communicate with the Prime Minister, since he was the Minister for Foreign Affairs, that I would resign as chair so that the committee’s work could proceed. As soon I resigned the recommendation of the committee was passed by cabinet,” he claimed.

Counsel asked if there were any attempts made by the Prime Minister in relation to the Australian Government to recall Cauchi back to Australia. Cauchi said he understood there was a request to the Australian Government for him to be recalled but he was not recalled because his contract was not with the Australian Government but with the Tongan Government. He received this information around February 2010.

"I would not say the relationship was a normal one. I worked at high level for other governments and worked on contracts as a prosecutor I have never experienced what I had experienced in Tonga during that year. It was clear to me by the fact that none of my advice was being followed and that my correspondence about very important matters was ignored, government did not want me to stay in the country."

Cauchi said, however, there were never any complaints made to him about his performance according to his contract or in relation to his role as the Attorney General. “I enjoyed being Attorney General and I wanted to stay, I only left because in the way I was being treated. I couldn’t fulfill my role as an independent legal advisor, if I was being ignored,” he said.

Laki asked the plaintiff whether there was any other option beside resigning. “I did not believe there was,” he said.

Prosecutors

Cauchi was also involved as the Attorney General in regards to a Royal Commission of Inquiry into the sinking of the Princess Ashika vessel.

He said after the inquiry he wrote to government that he would appoint independent prosecutors to assist with possible prosecution of any persons or corporations arising from the tragedy including bringing in forensic accounting to look at the Shipping Corporation accounts and other companies.

Crown Law made submissions to Treasury on costs, which were accepted, and the budget was approved, but the following day cabinet announced that the decision to appoint the independent prosecutors was to be reviewed. “In cabinet language this meant it would never return,” said Cauchi.

“The Attorney General has the sole responsibility for prosecution in Tonga and I was told that in my position I was independent. The decision by cabinet to defer and never appoint the prosecutors was a direct interference against my independent authority. At the beginning of my term I would be invited to cabinet  meetings to give advice but on this cabinet meeting which was held about the prosecutors, which was in direct relation to my work as Attorney General, I was not invited and this occurred within 20-weeks before my resignation,” he said.

Costs

Cauchi said that the expenses in regards to his accommodation and two official travels to Melbourne and Apia in 2009 were never reimbursed. He also had to pay his own expenses of returning and shipping his container of belongings back to Australia after he resigned. 

He said he returned to Australia but his previous job was already filled at the Director of Public Prosecution office in Tasmania.

“The only position available was a role they said was unsuitable for me and due to tight government budget there was no position available. I sought other jobs and made applications and joined the Australian Civilian Corps that consisted of trained people to be posted to different parts of the world, but nothing came from that, and I made other applications and was interviewed but because I have worked away from Australia for a long time the network is hard to break into,” said Cauchi.

He said it took him nearly three-years to obtain his previous position in Tasmania when he had returned from the Solomons. “I didn’t expect to be back in Australia so soon the contract in Tonga was for three-years.”

John Cauchi who is a qualified barrister in Australia said he is not working at the moment.

Job-offer

Cauchi said he got a call from Prime Minister Sevele who offered him the position as the Attorney General of Tonga saying he was recommended to the position and that Tonga was embarking on a new era and the king wanted to establish the Attorney General position as an independent legal advisor to government and to set up a legal sector of Tonga independent and separate from government.

“This was very attractive and he told me the salary I will receive was AUD$250,000 per annum, which was the same amount I received when I was employed as the Director of Prosecutions in the Solomon Islands and the same while I was in a private practice, he said.

Laki asked what was his answer to PM Sevele. Cauchi said he told the Prime Miniser that after leaving the Solomons he had obtained permanent employment. “I certainly said to him I was very interested in fulfilling the role and after a day we spoke again and I told him I would accept the position but I would have to resign from my position in Tasmania,” he said.

Cauchi said the Prime Minister told him since part of the salary will be donor money from Australia there were certain procedures to follow like the position would be advertised, which was only a procedural matter but if he wanted the position he had it.

“I sent an application and once I received confirmation I resigned from my post in Tasmania and I was directed by the Prime Minister to deal with the Chair of the Public Service Commission. I was told that the then Minister of Justice and Attorney General ‘Alisi Taumoepeau was resigning and I would take over her position,” said Cauchi.

He confirmed signing the Contract of Employment on 28 May 2009 for a three-years term, however he announced his resignation as Attorney General on 30 April 2010.

The trial continues with Cauchi being cross-examined by the defence.