The Court of Appeal has dismissed an appeal by Lord Tu’ivakano against a judgment of Lord Chief Justice Whitten dismissing a claim for damages by the appellant against the Police Commissioner, the Attorney General and the Kingdom of Tonga for malicious prosecution.
The appeal was heard by Judge Blanchard, Judge Hansen and Judge Randerson.
In February 2020 the former Prime Minister was tried in the Supreme Court on five counts of accepting a bribe as a Government servant, as well as single counts of money laundering, perjury, making a false statement for the purpose of obtaining a passport, and possession of a firearm and ammunition without a licence.
The main focus of the Crown case against the appellant related to the bribery and associated money laundering charges. The charges arose from the Crown allegation that the appellant along with others had been involved in a fraudulent scheme to issue Tongan passports for foreign nationals in exchange for money.
During the trial the Crown decided not to prosecute the bribery and money laundering charges. Lord Tu’ivakano pleaded guilty to the charge of possession of a firearm, but was found guilty on the perjury and false statement charges as well as the charge of possession of ammunition.
He successfully appealed against all but one of his convictions. This Court acquitted him on the perjury and false statement charges and dismissed the appeal in respect of the ammunition.
Lord Tu’ivakano then launched proceedings against the Police Commissioner, the Attorney General and the Kingdom of Tonga claiming TP$5.75 million in damages.
Lord Chief Justice Whitten dismissed the claim, arguing that there was no evidence to support the allegations. He found that the Police Commissioner and the Attorney General had acted properly in the conduct of their part of the investigation and prosecution.
He rejected the claim that the trial had been brought with malicious intent, arguing that Lord Tu’ivakano had not proved that the sole purpose to prosecute was one other than the invocation of the criminal law.
Lord Chief Justice Whitten firmly rejected allegations that the trial had been politically motivated. He said there was uncontroverted evidence that Commissioner Caldwell and the Attorney General’s office had cautioned Prime Minister ‘Akilisi Pohiva against making public statements or doing anything which could compromise the investigation and the decision to prosecute and had issued media statements to similar effect, to reassure the general public of the propriety and independence of the investigation.
In their summing up of the evidence regarding the Lord Chief Justice’s decision, the three judges of the Court of Appeal said he had made no material error in his analysis of the evidence or of the conduct of the investigation.
The appeal was therefore dismissed.
Lod Tu’ivakano was ordered to pay costs to the Police Commissioner, the Attorney General and the Kingdom of Tonga.
