The Supreme
Court has used a Samoan legal precedent in ruling that the Attorney General
has the power to intervene in, and terminate, private
prosecutions.
Lord Chief
Justice Paulsen said the ruling arose out of an action by ‘Etuate Lavulavu and
his wife, who are facing charges of obtaining money by false pretences and
knowingly dealing in forged documents.
These arose
out of their involvement in the affairs of an educational organisation called
‘Unuaki-‘O-Tonga Royal Institute.
The charges
were laid following an investigation authorised by the Auditor General.
In response
Mr. Lavulavu began civil proceedings for judicial review of aspects of the
special audit. He also began private prosecutions against four people involved
in the review.
When the
private prosecutions came before the Magistrate’s Court for committal, the then
Acting Attorney General applied to take over the prosecutions and to terminate
them.
He claimed
that Clause 31A (l)(b) of the Constitution, gave him the authority on behalf of
the Crown to manage all criminal prosecutions in the Kingdom.
The Acting
Attorney General argued that there was insufficient evidence to support the
prosecutions, that there was no public
interest in the pursuit of the prosecutions, that the prosecutions were an abuse of the Court’s processes and that the
interests of justice required them to be terminated.
Mr. Lavulavu
opposed the Acting Attorney General’s applications.
On April 9,
2019, Principal Magistrate Mafi ruled that the Acting Attorney General had no
right to intervene to conduct the prosecutions without Mr Lavulavu’s consent.
However, he
stayed the prosecutions until after Mr Lavulavu’s trial in the Supreme Court.
The Acting
Attorney General appealed the
Principal Magistrate’s ruling.
The recently appointed Attorney General, Mrs.
Folaumoetu’i, appeared at the
hearing of the appeal.
Mr. Lavulavu
filed a cross-appeal seeking the lifting of the stay, so he could pursue the
private prosecutions.
Mrs.
Folaumoetu’i, argued that her right to intervene and discontinue a prosecution
was recognised under common law and was contained in the powers conferred upon
her by the Constitution.
She argued
that a citizen’s right to bring a private prosecution was not absolute and was subject to the powers of the Attorney General; the existence and
exercise of which were necessary in the public interest.
Mrs
Folaumoetu’i said that to ensure decisions to prosecute were exercised lawfully
and properly, the Attorney General must have powers of supervision and intervention.
“Mr.
Lavulavu spoke of the personal toll that the Auditor General’s special audit
has had upon him and the steps that he has taken to obtain justice, for what he perceives are wrongs done to
him,” Lord Chief Justice Paulsen said.
“He argues
that there is nothing in Clause 31A which authorises the Attorney General to
intervene in a private prosecution.
“He
submitted that the Attorney-General is not impartial or independent as she is
the advisor to the executive and legislative branches and also effectively
representing the Auditor General in the prosecution against him.”
Lord Chief
Justice Paulsen said the Attorney General was not in Cabinet nor a member of
the Legislative Assembly. She was an
officer of the Crown and was not answerable to them and had complete discretion
to exercise her legal powers and duties.
The judge
reviewed legal authorities in Canada,
New Zealand, Fiji and Australia
and said that Samoa provided appropriate guidance.
“The Court
of Appeal of Samoa found that .the Attorney-General’s decision to
discontinue a private prosecution is reviewable but only on the grounds of
“flagrant impropriety” in the exercise of the discretion,” he said.
“The
Attorneys General in Samoa and Tonga fill similar constitutional positions and
I can see no reason why the same approach would not apply in Tonga.
“A private
prosecutor aggrieved by a decision of the Attorney General to intervene would,
in my view, be entitled to seek a judicial review of that decision in this
Court.”
“The Attorney General’s appeal is allowed and
the ruling of the Principal Magistrate is quashed in its entirety,” he said.
“The
Attorney General is granted leave to intervene and conduct the private
prosecutions brought by Mr. Lavulavu.
“The cases
are to be called before a different Magistrate on the first available date
after August 1, 2019, at which time the Attorney General is to advise if she will pursue the
prosecutions or discontinue them.”
The
main points
- The
Supreme Court has cited Samoan legal precedent in ruling that the Attorney General
has the power to intervene in, and terminate, private
prosecutions.
- In
his ruling on the case, Lord Chief Justice Paulsen said the ruling arose out of
an action by ‘Etuate Lavulavu and his wife, who are facing charges of obtaining
money by false pretences and knowingly dealing in forged documents.
