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Five MPs cleared in 2006 Nukualofa riots

NUKUALOFA, Tonga (Matangi Tonga, Sept. 11, 2009) – FIVE People's Representatives in the Tongan parliament in 2006 are acquitted of an indictment on a joint charge of seditious conspiracy because of inadequate evidence by the Crown, in a decision released by Tonga's Appeal Court on Wednesday.

However, Clive Edwards, a Tongatapu People's Representative, lost an appeal to quash an individual count of speaking seditious words, in offences alleged to have led up to the disturbances of 16 November 2006; and this is the only count remaining.

The Court of Appeal of Tonga upheld full appeals by four other appellants, 'Akilisi Pohiva, Isileli Pulu, 'Uliti Uata and Lepolo Taunisila, in its decision released on September 9, that a prima facie case of conspiracy to incite lawlessness or violence had not been established by the Crown.

The five appellants were all People's Representatives in the Tongan Parliament in 2006, and had been charged with offences alleged to have occurred in a period culminating in the civil disturbances of 16 November 2006.

The Appeal Court of Justices Burchett, Salmon and Moore, heard the appeal case on 30 June this year and released a 26 page judgement this week.

Each of the appellants was originally charged with conspiring to commit sedition, however, the counts included in subsequent indictments have changed a number of times.

At the time of the appeal the five accused were charged with individual counts of speaking seditious words on various dates; as a party to a joint criminal enterprise in relation to statements made by three of the accused; and with a joint charge of seditious conspiracy.

The new indictments and the judgment under appeal followed a judgement by Mr Justice Andrew on October 3, 2008, which had granted an application to add two additional counts, by way of a proposed amended indictment.

In October Justice Andrew had held that: "There is evidence that at some stage before the accused made speeches at Pangai Si'i and at other times the accused agreed that if they could not get Parliament to accept their political reform proposals peacefully then they would attempt to do so by inciting or encouraging lawlessness and violence by the people. Whatever interpretation the accused have offered there nevertheless remains evidence of the offence having been committed sufficient to establish a prima facie case."

The appellants were appealing against the Supreme Court judgement in its entirety and in particular, rulings allowing the inclusion of 1. individual counts of speaking seditious words; 2. allowing the Crown to prosecute the conspiracy and substantive counts together; and 3. dismissing the appellants' application to quash the indictment on grounds of insufficiency of evidence.

In overturning the ruling by Justice Andrew, the Appeal Court noted that because each party faced a seditious conspiracy count that it was convenient to consider this issue first, "because if we were to conclude that there was insufficient evidence on which a reasonable jury properly directed might convict the appellants on the conspiracy charges, it would be unnecessary to consider the arguments relating to the circumstances in which it is proper to combine a conspiracy charge and substantive counts in the indictments."

"The question is whether the appellants conspired to encourage violent behaviour."

The evidence which the Crown relied on to establish the existence of a seditious conspiracy was in the speeches or the statements made by the appellants on the 14th, 15th and 16th of November 2006, of which English transcripts were annexed to the judgement.

The Appeal Court concluded that the Crown had not made out a prima facie case of conspiracy to incite lawlessness or violence.

"In particular, violence being an essential ingredient of the offence, we do not consider that a reasonable jury, properly instructed could reach such a conclusion," the judgement stated.

They concluded that the Appeal should be allowed and that all indictments with the exception of the first individual count against William Clive Edwards should be quashed.

"It sometimes happens when grave damage has arisen from criminal activities, and lives have been lost, yet a number of persons charged with responsibility are acquitted, that there are those who question why the law should produce such a result. But it would be indeed a serious reproach to the justice system of Tonga if the magnitude of the suffering and damage incurred through the rioting on 16 November 2006 were to blind the Court to the inadequacy of the evidence adduced in respect of all but one of the charges against the appellants," the Appeal Court concluded.

On the individual incitement to violence charges the Appeal Court decided that a Prima Facie case was made in respect of Mr Edwards.

"Of the three speakers on the 14th November, Mr Edwards who spoke first was the briefest and was also belligerent. . . . By contrast we consider that Mr Edwards's repetition of the call to "stop our being peaceful" is capable of more sinister interpretation. We conclude that a reasonable jury properly directed might conclude that the tendency of these words was to incite violence and were used with that intention. We would therefore dismiss his appeal on the individual charge relating to 14 November," the Appeal Court stated in its judgment.

Rodney Harrison QC was counsel for Pohiva and Uata. Clive Edwards represented himself, Pulu and Taunisila. Larenson and Sisifa appeared for the Crown.

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