Nuku’alofa Supreme court upholds new trial for abortion accused

Tali 'e he Fakamaau Lahi' e tangi 'a e Kalauni' ke toe hopo'i fo'ou ha fefine ne tali halaia ki he'ene fakatooki 'ene pēpee'. Ko e fefine 'eni ko Theresa Vaomotou pea na'e tuku ange ia 'e he fakamaau polisi pule' Sālesi Mafi 'i Mā'asi ko e 'ikai ha lipooti mei he fale mahaki ke fakamo'oni ki he hia na'a' ne fai'. Na'e pehē 'e Fakamaau Lahi Cato 'oku tui tatau ia mo e Kalauni' na'e hala e tu'utu'uni 'a Mafi'. Ko e hia mamafa 'a e fakatō tama 'i Tonga pea na'e totonu ke tuku taimi 'a Fakamaau Polisi Mafi ma'a e Kalauni' ke fakakakato hono fatongia', ko Cato ia. Na'a' ne tu'utu'uni ai ke hā 'a Vaomotou he Fakamaau'anga Polisi' he taimi 10png 'i Sune 'aho 12 ke toe hopo'i fo'ou 'i ha fakamaau polisi kehe 'ikai ko Mafi.

The Nuku’alofa Supreme Court upheld an appeal granting a new trial to a woman who pleaded guilty to one count of procuring her own miscarriage.

The Principal Magistrate Mafi set aside Theresa Vaomotou’s guilty plea and because there was no medical report submitted to support the case he discharged her in March.

The Crown appealed Vaomotou’s discharge arguing that Principal Magistrate Mafi should have convicted the accused following her guilty plea, and should have proceeded to sentence her.

At the Supreme Court Justice Cato said he agreed with the Crown’s submission that the Magistrate erred in discharging the accused on the ground that the prosecution had not produced a medical report, and or for other reasons mentioned by him.

Mr Cato said: “The offence is a serious offence in Tonga and the Crown should have been given every opportunity to consider its position in the light of the observations set out in   the probation report.

“In denying the Crown further time to reflect on the accuracy of the matters set out in the report in order to determine its position in relation to further prosecution and possible trial and, in discharging her for the reasons he gave, the Magistrate denied the Crown natural justice.

“Accordingly, I uphold the appeal and make the following orders:

a. The Respondent is to appear on the 12th June 2018 at 10 am for a hearing date to be fixed for her trial before a Magistrate other than Principal Magistrate Mafi,

b. By that date, the Crown is to consider its position and indicate whether it desires to proceed to trial or whether it will offer no evidence. Should the Crown require further time to consider its position, it can apply then to the Magistrate for more time to be allowed before a trial date is given.

c. In the event that the Crown decides to proceed to trial, the recommendation only of this Court is that the Crown uses its best endeavours to ensure that the Respondent is legally represented. The lack of legal representation has already been suggested as a reason why the Respondent proceeded to enter a guilty plea. It is plain that, the case raises some difficult legal and factual issues and is important.

In making this recommendation, it is not meant to convey any general obligation on the Crown to assure a defendant is legally represented, which would require a detailed assessment of legal aid and its future availability in Tonga which is beyond the jurisdiction of this Court, but merely that this case is exceptional in the way it has developed with the consequence that, in my view, a Magistrate would be considerably assisted by the Respondent having legal representation.


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