A direction on the Tongan Supreme Court on how to process a civil case that was brought by the former Attorney General, John Cauchi against the Kingdom of Tonga is expected to be announced today, Friday, January 31.

The trial by a jury of this civil case came to a halt on 26 November 2013, when Chief Justice Scott decided to dismiss the jury after the counsel for the plaintiff, Laki Niu presented a motion to the court, calling for the dismissal of the jury.

The Chief Justice stated in a Reasons for Order that he released on 13 January 2014, that "the sudden decision by the Plaintiff to withdraw from the agreed procedure and the filing of the motion to discharge the jury left the court in an impossible position."

He stated that the alternative to retain the jury on stand-by for, possibly, several weeks - until counsel had been given an opportunity to argue the various substantive and procedural points raised - was not acceptable.

Chief Justice Scott also pointed out that the trial had already run to twice its allocated three days.

He  stressed that Tonga has only two judges. "One of them handles 95% of the criminal work, while I handle virtually everything else."

He said that he was not prepared to relist other matters, which were ready for hearing "merely because counsel cannot, between them arrive at a half way accurate estimate of the time required for convenient disposal of the action in which they are involved."

Civil case

The proceeding of the Civil Case between John Joseph Cauchi, the plaintiff, and the Kingdom of Tonga, the defendant, started at the Nuku'alofa Supreme Court on 19 November 2013 and ran until the 26 November, when Chief Justice Scott discharged the Jury and deferred the hearing indefinitely.

John Cauchi, became Tonga's first independent Attorney General on 29 May 2009, but he resigned and left Tonga on 3 May 2010.

He claimed that the Kingdom of Tonga breached and repudiated his working contract, and that he was constructively dismissed.

The counsel for the plaintiff was Laki Niu, and the counsel for the defendant was Neil Adsett, Tonga's Attorney General.

The hearing of the case got off to a slow start, partially because of a request by the plaintiff that "if the claim is defended the plaintiff required the case to be tried by jury."

Chief Justice Scott raised his concern that they could face problems when allowing a civil case to be tried by jury, referring to the different functions of the judge from that of a jury. "Generally speaking in jury trials, matters of law are determinable by the judge and matters of facts by the jury.

"Primary facts are facts which are observed by witnesses and proved by oral testimony as facts proved by the production of a thing itself such as original documents. Their determination is essentially a question of fact for the tribunal of fact and the only questions of law that can on arise on them is whether there was any evidence to support the findings."

The trial by a jury however started on 19 January, and ran into a number of stoppages as some of the material, the pleadings and the claims had to be translated into Tongan for the jury.

The Attorney General also raised three questions:

• How is the trial to proceed with a jury?
• Would it be appropriate for questions to be framed for the jury?
• And a question of law, independent of facts in dispute.

Trial started

After the trial finally got going, Laki Niu's only witness was the Plaintiff, John Cauchi,

The Attorney General also called Busby Kautoke, the first of three witnesses.

When the hearing continued on Monday, 26 November, Laki Niu handed in a motion to discharge the jury because "there has been a misdirection and mistrial as a result."

The Attorney General opposed the move to discharge the jury, and proposed instead that they be stood by to await the outcome of legal submissions yet to be advanced.

Chief Justice Scott stated in his report that he agreed with the Attorney General, because a procedure was agreed between counsel and the court, and was implemented.

Laki Niu also informed the court that his client, John Cauchi instructed him to withdraw his consent to the procedure three days after it had been implemented, and after he had returned to Australia.

Chief Justice Scott stressed that he decided to discharge the jury because the decision by the plaintiff to withdraw from the agreement reached, and the failure of all concerned to sufficiently prepare for the trial left the Court and the Jury in an "impossible position."

Chief Justice Scott is scheduled to announce on 31 January further direction for the case.