No point in appeal says Lord Chief Justice in rejecting appeal over 2013 assault case

The Supreme Court has turned down a request for an extension of the appeal period arising from a case in 2013.

On 1 February 2019 Siope Falevai pleaded guilty to one count of common assault.

The offence occurred in 2013 when the Respondent was a 17 years-old schoolboy. Magistrate Tuita sentenced Falevai by way of reprimand.

On June 18 2020, Falevai filed an application for an extension to the 28 day appeal period provided by the Magistrates Court Act. The grounds for the application were stated as being that there were strong grounds of appeal and being in the interests of justice.

Immediately after the sentence, the former Director of Public Prosecutions instructed the Crown Prosecutor assigned to the matter, Lute Fakatou, to return to Court “because there is no such sentence as a reprimand under law”;

Between February 4, 2019 and  June 24, 2019, a number of unsuccessful attempts were made (including with the Attorney General) to discuss the matter with the Magistrate.

On April 6 2020, she informed the Registrar of the Magistrates Court that the Respondent had not been properly sentenced and proposed that the matter be recalled in Vava’u where the respondent was living to be properly sentenced by the Magistrate there.

The Magistrates Court responded that the decision of February 1 stood and that the only avenue available was to appeal.

Falevai argued that the sentence was an ‘administrative error’ because a reprimand was not provided in the Criminal Offences Act. Further, he argued that the 28 day appeal period expired on 16 June and therefore the relevant delay therefore was only two days.

The Supreme Court ruled that while it was true that a reprimand was not one of the sentencing tools expressly provided by Part IV of the Criminal Offences Act, the material on the application did not reveal any consideration as to whether the Act was to be interpreted as an exhaustive code of the only sentencing options which could be inflicted.

“I am not aware of any other instances in Tonga where a reprimand has been given by a Magistrate as a means of dealing with a common assault charge,” Lod Chief Justice Whitten said

“There has been substantial delay in bringing this application which has been poorly explained and fuelled by a misconception as to the true nature of the Magistrate’s decision and what ought to have been done about it.

“I see little to no practical utility in the appeal.”

 

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