Charges Against Tonga’s Lord Dalgety Dismissed

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Charges Against Tonga’s Lord Dalgety Dismissed Perjury charges arose from MV Ashika inquiry

NUKU‘ALOFA, Tonga (Matangi Tonga, Sept.28, 2012) – Lord Dalgety QC was discharged from a perjury indictment this morning, after Mr Justice Charles Cato ruled there was insufficient evidence to go forward to trial, at the Nuku'alofa Supreme Court.

Lord Dalgety, otherwise known as Ramsay Robertson Dalgety, was earlier charged with perjury, which related to a statement he made regarding the company Ocean Pacific Ltd. in January 2010 at the Royal Commission of Inquiry into the sinking of the MV Ashika ferry, which resulted in the loss of 74 lives, on August 5, 2009.

The perjury indictment against him came from a reply he made when questioned by Manuel Varitimos the Counsel Assisting the Ashika inquiry and was quoted:

"Mr Varitimos: Well do you know what the shareholding in Ocean Pacific Limited is?"

"Lord Dalgety: I - I can't remember that. It was - it was organised out - I wasn't involved in the organisation of that company."

Judgement

Justice Cato in his judgement said he did not consider when considering the totality of the evidence of Lord Dalgety before the Commission as to what he meant by "organise out", that it was capable of constituting falsehood or a material lie.

He ruled that the meaning or sense in which Lord Dalgety used the term "organise out" was so far removed from the vital issues the Commission had to consider concerning Ashika and the tragic events of 2009, that he did not think a guilty verdict could ever be regarded as a safe verdict.

"It is my view that the charges of perjury must be made out plainly and that is not the case here. I rule that the Crown had failed to reach the level required under the legal standards I must apply and accordingly I discharge Lord Dalgety from the indictment," he said.

However, Justice Cato did not find that Lord Dalgety had any immunity under Section 9 of the Royal Commissions Act as a prosecution for perjury can arise out of false evidence, given before a Royal Commission.

"And I do not consider that the prosecution for perjury was pursued by the Police or the Crown for some improper, collateral or malicious reason and decline a stay," he said.

Kahungunu Barron-Afeaki SC represented Lord Dalgety, while the Solicitor General 'Aminiasi Kefu acted for the Crown.

Applications

Justice Cato delivered his judgement after a two-day hearing was initially held on September 6-7 on pre-trial applications to discharge Lord Dalgety from perjury.

Lord Dalgety's counsel had submitted to the court to discharge the indictment on three grounds, that there was immunity afforded to Lord Dalgety under Section 9 and 11 of the Royal Commissions Act. The evidence did not sufficiently establish a prima facie case for Lord Dalgety to answer, and the evidence on his denial of being involved in the organisation of Ocean Pacific was not sufficient for him to stand trial.

He submitted that the prosecution amounted to an abuse of process because the prosecution did not have a reasonable basis to proceed with this prosecution and it was not done in good faith.

Crown counsel, 'Aminiasi Kefu argued that Lord Dalgety deliberately and falsely said that he had not been involved in the organisation of the Ocean Pacific Ltd., which was incorporated in 2003, when he was secretary.

He said that Lord Dalgety had avoided any further questioning about his role in the company which was associated with the Shipping Corporation and fell within the scope of the Commission's terms of reference.

"If the lie stopped a legitimate line of inquiry for the commission then it was material and one of the aim of the inquiry was the efficiency of the Shipping Corporation of Polynesia Ltd. and the role of its secretary Lord Dalgety in the corporation and an inquiry into his activities with an associate company was a legitimate inquiry," 'Aminiasi argued.

Lord Dalgety was the former company secretary for the Shipping Corporation, the operator of the MV Princess Ashika ferry.

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