TONGA HIGH COURT QUASHES ‘LORD’ DALGETY TRIAL

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Former Attorney General calls ruling ‘outrageous’

NUKUALOFA, Tonga (Matangi Tonga, Nov. 1, 2010) – The trial of Ramsay Robertson Dalgety also known as "Lord Dalgety," for perjury was quashed by Justice Robert Shuster in the Nuku'alofa Supreme Court this morning, November 1, on a technicality, when he ruled that indictments must be signed and dated.

[PIR editor’s note: Ramsey Robertson Dalgety is a former Scottish Queen’s counsel and a former judge of Tongan’s Supreme Court. He was appointed as Law Lord in Waiting by King George V of Tonga in 2008 who later became Lord Dalgety. He is also the Secretary of the Shipping Corporation of Polynesian Ltd in Tonga. Robert Shuster, who specializes in Criminal Laws, was sworn as a judge to Tonga’s Supreme Court in 2008 by Tonga’s Government, with support from the Commonwealth Secretariat.]

Solicitor General Aminiasi Kefu, representing the Crown, argued against the technicality and said that a 12-day-old direction from the Chief Justice requiring the signing of indictments did not apply to the indictment of Dalgety that was actually filed in April.

[PIR editor’s note: Former Tonga Attorney General John Cauchi today said that the move to quash perjury charges against a Tongan law lord raised questions about the independence of the country's judiciary. "What can I say? It's an outrageous abuse of process," he told the news agency AFP.Cauchi resigned in April citing government interference in the legal system. ]

Lord Dalgety appeared in the court on an indictment of perjury relating to a statement he made at the Royal Commission of Inquiry into the sinking of the MV Princess Ashika in January 2010.

But Justice Robert Shuster quashed the indictment saying the document was invalid and incorrect as it was not signed or dated by the prosecutor.

The Solicitor General 'Aminiasi Kefu in response disagreed with Justice Shuster that the indictment was invalid because it was never a practice in Tonga for indictments to be signed and dated as there was no prescribed rule to do so. He said under the law of Tonga the document was valid. He then added, the matter should be deferred and submitted to the Tonga Court of Appeal to make a final decision.

He also stated that it was not until October 20, that the new Chief Justice Hon Michael Dishington Scott had issued a direction for the indictments to follow this practice of being signed and dated.

Arguments

Justice Shuster told the court his first concern was that an indictment must be valid as it had to be signed and dated but the indictment filed on April 23 was not an indictment but a bill of indictment making it incorrect and invalid.

He also made reference to Archibald, a commentary relating to criminal law in England, and in reference to indictment it stated that the document must be patent and signed. He said that he sat in courts in Fiji, Canada and in England and this was the practice.

The Solicitor General replied that this was not the case here in Tonga because there was no prescribed rule that indictments must be signed and dated as it had never been the practice in Tonga to do so. He argued that the indictment was valid under the Law of Tonga.

In continuing their legal argument, Justice Shuster then asked the Solicitor General: "why should Tonga be alone in this practice?"

The Solicitor General answered because Tonga is a sovereign country and had been running over the last 100 years with this procedure and there was no law in Tonga that dictated such procedure.

"Well, it's being challenged now," said Justice Shuster.

The Solicitor General responded they should then defer the case to the Court of Appeal to make a final decision.

Lord Dalgety who was present in court was represented by three counsels: Mr. Hirschfeld, Tavake Afeaki and Kahu Afeaki.

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