Magistrate wrongly frees former police officer charged with armed robbery

'Oku taupotu 'i lalo ha fakamatala faka-Tonga

A Supreme Court Justice has found a Lower Court judge erred in law by granting a discharge without conviction to a former Police officer who was charged with armed robbery.

Justice Cato has ordered a retrial for Sila Vai Talamai but this time it will be at the Supreme Court.

The court heard that two police officers saw Talamai inside what was later identified as a getaway car near the scene of the robbery shortly before it occurred.

The accused and a co-offender denied Talamai’s involvement.

Justice Cato said the Crown was correct in its submission that the Learned Principal Magistrate had wrongly discharged the accused.

“For the reasons I have given, I consider that the Magistrate erred in not committing the Respondent for trial and in my view; he ought to have done so following the approach in Galbraith.

“I do not propose to remit the matter back to the Magistrate but I exercise my power under section 80 of the Magistrates’ Court Act and commit the Respondent for trial in this Court, on an appropriate date to be fixed.”

The counsel for the accused Sifa Tū’utafaiva argued that the Magistrate had already struck out an earlier summon on the 28 January 2018, after the appellant had failed to provide documents by that date pursuant to an order of the Magistrate and after a delay of about seven months in providing the documentation.

Tū’utafaiva submitted that to recommence proceedings was a violation of clause 12 of the Constitution which said:

“No one shall be tried again for any offence for which he has already been tried whether he was acquitted or convicted.”

Justice Cato said: “All that happened here was that the information was dismissed because of the Prosecution’s failure to abide by the Magistrate’s order.

“Even if an accused was discharged for lack of sufficiency in the prosecution case and the accused discharged at the preliminary hearing that discharge is not an acquittal.”

Justice Cato ordered Talamai’s name to be put on the no flight list and follows his bail conditions which were originally set in the Magistrates Court.

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