IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
Application No. CA 2/90

BETWEEN

PAHU TOKA
of Penrhyn Justice of the Peace
Applicant (Defendant)

AND

THE CROWN SOLICITOR
of Rarotonga
Respondent (Informant)

Counsel: Mr Appleby for Applicant
Mr Gibson for Respondent

Date of Judgment: 6 July 1990

JUDGMENT OF DILLON J

This is an application for leave to appeal against a conviction entered by this Court against Mr Pahu Toka of Penrhyn who was convicted by a Justice of the Peace in Penrhyn on the 1st of February on two charges as follows:

1. That on the 27th December 1989 at Penrhyn without reasonable cause he did discharge a firearm namely a double barrel 12 gauge shotgun to the danger of Akatiki Nanua.

2. That on the same date and place he did have in his possession a firearm, namely a double barrel 12 gauge shot gun without lawful proper and sufficient purpose.

Both these charges arose out of the same incident. The circumstances of the incident are set out in a written judgment of Roper CJ delivered on the 15th June 1990 following a full re-hearing of the Penrhyn case on the 13th June 1990. A re-hearing was necessary because no notes of evidence were available for the hearing before the Justice of the Peace in Penrhyn which had taken place on the 1st of February 1990.

At that re-hearing evidence was given by the two witnesses from Penrhyn; the Complainant and one other. At the same time affidavits from other witnesses were also considered, these affidavits being acceptable as evidence as conceded by Mr Appleby because it was not possible to have those witnesses attend the Court hearing in Rarotonga. Mr Gibson on this aspect advised this Court that it was he who had arranged for the two Crown witnesses to be brought from Penrhyn and that he had been told there were only two seats available on the plane.

At the re-hearing in Rarotonga evidence was also given by the Defendant Mr Toka and an aunt of the Defendant's wife who was the witness to the incident.

The application for leave to appeal is based upon the ground that the Chief Justice in reaching his decision erred both in fact and in law. The application is based upon Article 16(2) (e) of the Cook Islands Constitution which permits an appeal to the Court of Appeal from the Chief Justice's decision by way of my exercising a discretion, that that be done.

Mr Appleby submitted that the Chief Justice had erred in law in the following respects:

1. At the bottom of page 3 of the Chief Justice's decision this is the only reference as to how the Chief Justice found on the facts i.e. his judgment indicated that he relied on the Penrhyn hearing rather than on his own judgment of the evidence produced before him.

2. Mr Appelby contended that the critical question which he was asked to decide upon was whether he was in danger and that nowhere in the Chief Justice's decision is there any indication that this had been established or proved to the requirements submitted by Mr Appleby.

3. The final submission by Mr Appleby as to the Chief Justice erring in law was that having delivered his judgment on the 15th of June he failed to allow Counsel to make submissions as to what would be an appropriate sentence.

Mr Appleby then turned to what he claimed were errors of fact in the Chief Justice arriving at the judgment which he did. These are set out as follows:

1. On page 3 the Chief Justice, he said, referred to the question of "fearing an attack" but it was Mr Appleby's recollection of the evidence translated which is not on the file that the woman witness for the Defendant had in fact stated that there was a "fearing of an attack".

2. Mr Appleby referred to the difficulty of translating between Cook Island and Penrhyn language; questioned whether the translation in some respects had been correct, proper, or given the wrong impression; but conceded that no objection had been taken at the time of the hearing when of course objections should have been made.

3. He objected to the number of affidavits which were produced which meant that he did not have the opportunity to cross-examine those witnesses. This aspect has already been covered by Mr Gibson who advised this Court that he brought two witnesses because there were only two seats available on the plane. In any case the Chief Justice makes no reference in his judgment to the affidavits of those witnesses which may or may not indicate that he did not rely on that evidence to reach the final decision that he did.

Mr Gibson for the Police provided detailed explanations for the matters raised by Mr Appleby and I don't propose to traverse in detail those submissions. Sufficing to say that apart from the submission concerning sentence referred to by Mr Appleby the other submissions made by him do not in any way, in my opinion justify an exercise of discretion that I am required to decide upon.

Really, the thrust of Mr Appleby's submissions is based on what he refers to as the magnitude of the interest affected. He referred to Mr. Toka as a special person in the Penrhyn community; he referred to the fact that this case had received notoriety not only in Penrhyn but all the other islands of the Cook Islands; he referred to Mr Toka being aged 60, a Justice of the Peace and in the circumstances of the case necessitated the people of Penrhyn deciding what should be the outcome of this case; and Mr Toka could not be penalised but because of the possibility of a conviction both he and the Penrhyn people could be deprived of his services as a member of the Island Council because the conviction would have an effect of disqualification for election at the forthcoming by-election. In this respect it is clear that the people of Penrhyn represented by their Justice of the Peace, has decided what should be done to Mr Toka. He was on the 1st of February 1990 convicted and discharged by the people of Penrhyn represented by their Justice of the Peace. The matters in issue have now received a substantive re-hearing because of failure of having the notes of evidence in the Penrhyn hearing and after that detailed re-hearing; the opportunity to hear and assess the two witnesses for the Prosecution; and the opportunity to assess and consider the evidence given by Mr Toka and his relative, a decision similar to that as decided upon by the Justice of the Peace in Penrhyn has been given by the Chief Justice. The reserved decision of the Chief Justice clearly sets out the grounds for the decision arrived at. He has taken into account the facts; that he has considered all other matters necessary for a proper and adequate and critical analysis necessary before making the decision he did, of again convicting Mr Toka and discharging him without any penalty. It is in fact correct as Mr Appleby said that he is not late to make submissions as to sentence but having convicted Mr Toka there could be no less sentence than a discharge.

It is correct as Mr Appleby has said that a conviction has a consequence of great importance to Mr Toka but also as a seriousness of the charges which were laid and the consequence of those serious charges which could have resulted. The Chief Justice has clearly considered this when he said that Mr Toka "took the law into his own hands in a manner which cannot be condoned. I am far from satisfied that the Justice did not err in entering convictions and the appeals against conviction are therefore dismissed."

The Chief Justice went on to the question of sentencing and as to a possible explanation as to why Counsel was not given the opportunity to give submissions, the Chief Justice expressed his opinion that the "appellant was treated with considerable leniency". In view of the seriousness of the charges; in view of the admissions by counsel that this case had a substantial impact on the small community of Penrhyn; and that it was widely reported throughout the whole of the Cook Islands; it is clear that such matters were considered by the Chief Justice in dealing with the question of sentencing.

In all the circumstances, there is no basis in my view upon which I could regard Mr Toka's interests of such magnitude as to warrant the granting of this application; the exercising of my discretion; and allowing leave to appeal as applied for. In all these circumstances, leave to appeal is refused.

J D DILLON
JUDGE

Solicitors: D.M. Sceats for appellant
Clarkes & Co, for first respondent
M.C. Mitchell & Co, for second respondent