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Edwards v Soakimi [2002] TOLawRp 11; [2002] Tonga LR 51 (2 April 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 649/00

Edwards

v

Soakimi anors

Ford J
1, 2, 11 November 2001; 2 April 2002

Judicial review – court of inquiry decisions – "Wednesbury unreasonable" test

Near the end of 1999 the first defendants were appointed by Cabinet to constitute a court of inquiry to investigate 11 charges against the second defendant, the Superintendant of Prisons, Semesi Tapueluelu. After a hearing which took place over a four month period the court of inquiry delivered its written decision convicting the second defendant on one charge (number 8) and acquitting him on the other 10 charges. The plaintiff, Edwards, the Minister of Police in charge of prisons, issued judicial review proceedings challenging the findings of the court of inquiry on the 10 acquittal decisions. The basis of the Minister's challenge was that the decisions in question were reviewable because, looked at objectively, they were so unreasonable that no reasonable court of inquiry could ever have come to them.

Held:

1. The Prisons Act conferred no right of appeal from a determination of a court of inquiry but it was not disputed that decisions of a court of inquiry were subject to the supervisory jurisdiction of the Supreme Court by way of judicial review. The court's investigation of the facts of the case upon review was of a supervisory nature only. It was concerned not so much with whether the decision was right or wrong, as would be the case upon appeal, but with ensuring that the inquiry was conducted according to natural justice and that the decision-making process accorded with the recognised judicial review principles.

2. In order to challenge the validity of a decision upon review, a plaintiff must be able to satisfy the court, not simply that the decision was "unreasonable" per se but that, in terms of the Wednesbury test, it was so unreasonable that no reasonable court of inquiry could ever have come to it. Decisions 1, 2, 3, 5, and 7 were upheld.

3. When it came to assessment of the reliability of the witnesses and the weight to be given to conflicting propositions, those were matters that fell within the jurisdiction of the court of inquiry and the Supreme Court has no power upon review other than to accept the findings as being correct. Decision number 4 was upheld.

4. It was up to the court of inquiry to make of all the evidence what it deemed fit. The court of inquiry was perfectly capable of assessing the evidence and it was irrelevant whether the review court may have reached a different conclusion on the factual matters. The question of weight as between competing considerations was entirely a matter for the decision-maker, not for the court on review. Decision 6 was upheld.

5. There was a fundamental defect of "Wednesbury" proportions in that the court of inquiry asked itself a question which was irrelevant to the charge it had to consider and then allowed the answer to determine the whole outcome of its decision. It was not always necessary to establish every part of a particular stated in a charge before the offence could be made out. Once the substance of the charge was established, that was sufficient to enter a conviction. Decisions 9 and 10 were unreasonable in terms of the "Wednesbury test" and they were set aside.

6. The court of inquiry held that there was no case for the defendant to answer in terms of decision number 11. The plaintiff satisfied the Supreme Court that the decision was "Wednesbury unreasonable" and based on a mistake of law. It was set aside. As the decision was given on a no case submission, that would normally result in an order for a rehearing however the court considered remedies.

7. With respect to remedies, the court of inquiry heard the various cases between November 1999 and February 2000 and the lapse of time between the events that gave rise to the charges and any reconvened hearing would not be conducive to the best interests of justice. The review court was not persuaded that it was appropriate to order mandamus compelling the court of inquiry to reconvene and hear and determine the three charges in question according to law. This matter has now run its course and the issues were no longer extant.

8. The justice of the case and the need, from a precedent viewpoint, to have the position clarified should any similar situation arise in the future was best met by the granting of the plaintiff's request for declaratory relief in respect of the decisions found to be unlawful.

Cases considered:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Council of Civil Service Unions v Minister for Civil Service [1985] AC 374

Mahon v Air New Zealand [1984] 3 All ER 201

Nottinghamshire Country Council v Secretary of State for the Environment [1985] UKHL 8; [1986] AC 240

Pearlman [1979] 1 All ER 365

Prasad v Minister for Immigration and Ethnic Affairs (1985) FCR 155

R v Hull University Visitor, Ex p Page [1992] UKHL 12; [1993] AC 682

Racal Communications Ltd, Re [1980] UKHL 5; [1980] 2 All ER 634

Reg v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484

Statutes considered:

Act of Constitution of Tonga (Cap 36)

Prisons Act (Cap 36)

Rules considered:

Prisons Rules

Counsel for plaintiff: Mr Edwards
Counsel for first defendant: Miss Simiki
Counsel for second defendant: Mr Tu'utafaiva

Judgment

Towards the end of 1999 Cabinet appointed the first defendants to constitute a court of inquiry to investigate 11 charges against the Superintendent of Prisons. The Superintendent was the second defendant Semesi Tapueluelu.

After a hearing which took place over the course of some 4 months the court of inquiry delivered its written decisions convicting the second defendant on charge No 8 and acquitting him on the other 10 charges. The Minister then issued the present judicial review proceedings challenging the findings of the court of inquiry on the 10 acquittal decisions. This decision, therefore, is ten decisions rolled into one.

The evidence taken before the court of inquiry which was translated and produced at the review hearing, together with the various exhibits, was voluminous. I am grateful to counsel for the succinctness with which they managed to deal with the issues.

The case presented on behalf of the Minister was that the decisions in question were reviewable because, looked at objectively, they are so unreasonable that no reasonable court of inquiry could ever have come to them. Reliance was placed on the test of unreasonableness laid down in the seminal judgment of Lord Greene LR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, at 230 where his Lordship said:

"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere." His Lordship added the caution, "to prove a case of that kind would require something overwhelming..."

In terms of the Wednesbury test, it is alleged that the court of inquiry took into account matters which it ought not to have taken into account or, conversely, failed to take into account considerations it should have taken into account. The plaintiff also alleges that the court of inquiry misdirected itself and made errors of law.

The court of inquiry is not one of the courts recognised and vested with judicial power under clause 84 of the Act of Constitution of Tonga (Cap 36). Effectively it is a "court" in name only. In reality, it is a body more familiarly known these days as a statutory tribunal vested with quasi-judicial powers. It is constituted under section 15 of the Prisons Act (Cap 36) which provides that Cabinet may form a court of inquiry to hear "any charge of breach of discipline or offences brought against any prison officer except those of a petty nature..." Section 16 gives the court of inquiry the power to hear and determine any such charge and, in the absence of any express punishment provision, it has the power to impose a fine not exceeding $50 or imprisonment for any term not exceeding 2 months. Under section 16 the court of inquiry is given all the powers of a magistrate to summon and enforce the attendance of witnesses but there are no other procedural directions prescribed in the Act.

The Prisons Act confers no right of appeal from a determination of a court of inquiry but it was not disputed that decisions of a court of inquiry established under section 15 of the Act are subject to the supervisory jurisdiction of this Court by way of judicial review.

The distinction between an appeal and a right of review is important, however, and needs to be constantly borne in mind. As Halsbury, vol 1(1), para 60, puts it:

"Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. It is thus different from an ordinary appeal. The purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected: it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question ... The duty of the court is to confine itself to the question of legality. Its concern is with whether a decision-making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers. "

The submissions in support of the Minister's application for review in the present case focused on the alleged unreasonableness of the court of inquiry's decisions and on so-called errors of law. I do not consider that the review process contemplates the court having to painstakingly wade its way through a mass of evidence trying to analyse it and determine where the truth of the matter may lie. The court's investigation of the facts of the case upon review is of a supervisory nature only. It is concerned not so much with whether the decision is right or wrong, as would be the case upon appeal, but with ensuring that the inquiry has been conducted according to natural justice and that the decision-making process accords with the recognised judicial review principles.

The approach which I propose to adopt in the present case in relation to the challenge on the grounds of unreasonableness is that suggested by Lord Scarman in Nottinghamshire Country Council v Secretary of State for the Environment [1985] UKHL 8; [1986] AC 240, at 247. 1 will have regard to any specific passages that have been drawn to my attention by counsel but, in terms of the "Wednesbury unreasonable" test, I do not propose to carry out any detailed examination or analysis of the transcript of evidence, unless I am persuaded that a prima facie case has been shown for holding that the particular decision is so absurd that the court of inquiry must have, adopting Lord Scarman's expression, "taken leave of its senses".

Lord Diplock preferred the word "irrational" to "unreasonable" but he expressed the test in a similar way suggesting that to be reviewable the decision would have to be:

... so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. -- Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 410.

In relation to the other ground advanced by the plaintiff for challenging the decisions, namely, mistake of law, it has long been recognised that judicial review is available as a means of correcting mistakes of law made by administrative tribunals exercising quasi-judicial functions. As was stated by Lord Diplock in the House of Lords decision in Re Racal Communications Ltd [1980] UKHL 5; [1980] 2 All ER 634, at 638:

"... the presumption (is) that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined, and if there has been any doubt as to what that question is this a matter for the courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So, if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. Parliament can, of course, if it so desires, confer on administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where the decision-making power is conferred on a tribunal or authority that is not a court of law, parliament did not intend to do so."

Despite the absence of appeal rights, there was no suggestion in the present case that the presumption was rebuttable. The "clear words" which Lord Diplock spoke of would need to be language providing for the court of inquiry's decision to be final so that it could not be challenged either by way of appeal or by judicial review.

The modern position appears to be that almost every error of law will render a decision susceptible to review if such an error materially affects the decision. As Lord Browne-Wilkinson expressed it in R v Hull University Visitor, Ex p. Page [1992] UKHL 12; [1993] AC 682, at 702:

"The mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, i.e. an error in the actual making of the decision which affected the decision itself."

Against that background I now turn to consider the various decisions under challenge in the present case. The plaintiff challenging the validity of the court of inquiry's decisions, of course, bears the legal burden of proof throughout.

Plaintiff's counsel presented written submissions which he developed extensively at the hearing. The two defence counsel then sought leave to file written submissions in response. Leave was granted and a timetable was duly fixed. Submissions were received from the first defendant but, despite an extension of time being granted, no submissions have been received from the second defendant. The court, therefore, has not had the benefit of hearing from counsel for the second defendant which is unfortunate in the sense that he was the only counsel who had been present throughout the court of inquiry hearing.

The approach adopted by the court of inquiry followed a similar format for each decision. After setting out the charge, there followed sections dealing with the law and the facts and then the court turned to the issues it considered it had to ask itself and finally it recorded its formal order.

DECISION NO 1

The charge reads as follows:

"That you did during the months of February -- Mar 1997 at Talafo'ou as a prison officer used government property committed to your care otherwise than in the public service contrary to section 18 of the Prisons Act Cap 36 vol 1 Laws of Tonga in that you converted for your own use and that of your family approximately 297 posts the property of the government and used it to fence your own town allotment at Talafo'ou together with four other town allotments belonging to your sons at Talafo'ou and which posts or property is valued at approximately TOP $1485 and which posts are the property of the government's prison."

The court of inquiry considered the facts and noted that the Prison Department had a jetty or wharf which was situated on the seafront of the second defendant's api at Talafo'ou. The api was called "Liuanga". The wharf was used when travelling back and forth from the prison island of 'Ataa. Prison boats were stored at the jetty when not in use and other Prison Department goods were kept locked in the house on the property. The evidence indicated that the jetty and the api were used from time to time for social purposes connected with the operation of the prison. The court of inquiry found that the posts that had been taken to the second defendant's property had been used for repairing the wharf and the existing fence on the api and extending the fence line down to the sea.

The court of inquiry concluded that the posts were the property of the government and that the second defendant had used them and then it went on to state in the final paragraph of its decision:

"That the work was unlawful? In accordance with the statements of the witnesses the department used the property to store their boats and other goods locked in the house there. The social functions of the department are held there and the warders use the key to the gate to enter the property. When they prepare to travel to the island and return they rest at the api. There is nothing else on the api except at the time of the diving for sea cucumbers. The defendants looked after it and the question to be asked was it lawful to fence this property to the sea and to repair it? The answer to it is yes, it was proper to do so because the property is used by the department like their own property. Therefore this court orders that the defendant be acquitted in case number 1199."

The plaintiff pleaded that the court of inquiry wrongly confined its decision to posts used on the town allotment of the second defendant and failed to consider the posts used on the other 4 allotments belonging to the second defendant's sons. He further alleged that the claim that the jetty was used for prison social purposes and storage was wrong and that the second defendant had no permission to hold any social functions outside the prison compound. Other issues were raised by counsel in his oral submissions.

Counsel for the first defendant accepted that the court of inquiry did not refer expressly to posts used on the allotments belonging to the sons but she noted that the property known as "Liuanga" consisted altogether of five allotments which belonged to the second defendant and his sons and she submitted that that would no doubt explain why the court of inquiry appear to have treated the allotments all as the one property. I accept that submission. In any event, it is difficult to be certain from the prosecution evidence that repairs were, in fact, carried out on land owned by the second defendant's sons. On the other hand, there appears to have been ample evidence, if accepted, to support the court's finding that the property fenced had been used for social functions and storage purposes. One prosecution witness, for example, Masiu 'Aholelei, said: "Many department's social functions were held at this property. The property has electricity and water supply and we were free to use them."

There was evidence that the repairs and extensions made to the fence on the api were considered prudent improvements not only in order to provide better security to protect the jetty and the department's property from vandals but also to protect and safeguard the public from prisoners using the area.

In his submissions in reply, counsel for the plaintiff criticised the court of inquiry's finding in relation to social functions. He submitted that social functions could not be regarded as a prison activity referable to any statutory provision, law or regulation but, notably, counsel did not refer to any evidence in support of this proposition.

The transcript, on the other hand, reveals that the evidence relating to the social functions came initially from the prosecution's own witnesses. The second defendant then, in his evidence in chief, also referred to the social functions. He said:

"A house was built at Liuanga and the Department often held social functions at the premises. The Department had certain rules and that was the reason why the social functions were held at Liuanga but not at Hu'atolito/i (the prison)."

The statement went completely unchallenged. The second defendant was not asked one question about the social functions in cross-examination; nor were any of his other witnesses.

The court of inquiry can act only upon the evidence it has before it.

The plaintiff has failed to persuade the court that the first decision was, as the test has been referred to in many of the reported cases, "Wednesbury unreasonable".

The plaintiff further alleged that decision number 1 was wrong in law. He pleaded that the court of inquiry, "... did not understand or apply the legal principles relevant to the consideration of conversion under section 18 of the Prisons Act".

The relevant part of section 18 reads:

"Every prison officer who uses any property committed to his care otherwise than in the public service or who sells or gives away any government property under his care . . . shall be liable on conviction thereof before a court as is mentioned in section 15 to a fine not exceeding $50 ..."

The reference to "a court as is mentioned in section 15" is a reference to a court of inquiry.

It was also alleged that the court failed to take account of the fact that the second defendant had had no authority from government to repair the jetty or the fences and it was submitted that the court should have construed the words "public service" in section 18 strictly to cover only government services.

Crown counsel in response submitted that the court of inquiry did not need to consider the concepts of "conversion" and "authority" under section 18 because those terms are not mentioned in the section. Counsel further submitted that, as the term "public service" is not defined in the Act, there is no legal requirement for the words to be construed other than in their ordinary English meaning which, she submitted, were sufficiently broad to cover the second defendant's activities.

I find these submissions compelling. I also have difficulty accepting the plaintiff's submission that the court of inquiry gave a wrong interpretation to the words "public service" because, in reality, the court did not embark on any definition of that term. The situation is not unlike that which Lord Diplock had in mind in Re Racal Communications Ltd when commenting upon the error which he believed the majority of the Court of Appeal had fallen into in Pearlman [1979] 1 All ER 365. In Pearlman it had been alleged that the decision-maker had wrongly interpreted the words "structural alterations, extension or addition" where they appeared in a statue but Lord Diplock observed that the decision-maker "had not ventured on any definition of the words, so there was really no material on which to hold that he had got the meaning wrong rather than its application to the facts." His Lordship made the observation that the Court of Appeal had been in error in trying to infer that the decision-maker's error was one of interpretation.

In my view, the plaintiff's submission on interpretation in the present case falls into the same error. I have not been persuaded that the court of inquiry's decision should be set aside for error of law.

Decision number 1 remains undisturbed.

DECISION NO 2

Charge No 2 reads as follows:

"As a prison officer during the months of February -- Mar 1997 you acted negligently in not reducing the expenditure of government money and thereby breached section 5 and 16 of the Prisons Act and rule 34 of the Prisons Rules in that you ordered a prison officer and prisoners to travel by MV LANGIFO'OU to the island of Nomukeiki to cut fence posts for the prison a total of 1569 posts were loaded and shipped to Tongatapu on two trips by the same ship resulting in a large government expenditure of money amounting to approximately TOP $1666.30 whereas you should have taken care to reduce the expenditure of government money."

Section 5 of the Prisons Act gives the Minister the power to make rules and section 16, which I have earlier referred to, sets out the powers of a court of inquiry. Rule 34, which is significant in relation to this charge, reads as follows:

"34. He (the prison officer) shall have a careful regard for economy and propose any saving or reduction in expenditure that may appear to be practicable."

The court of inquiry referred to these statutory provisions in its decision and found that the second defendant had ordered the warder and prisoners to travel to Nomukeiki to cut the posts. It concluded:

"That is the cheapest way to obtain good posts for the use required according to the witnesses. If they were bought from somewhere else the costs would be many times the expenditure that occurred. In crossexamination of Sione Falemanu (the acting prison superintendent at the time of the inquiry) and the explanation by the defendant, Sione Falemanu supported the cutting of posts and that he reminded the defendant to arrange for the travel to Nomukeiki. As a result there was no negligence on the part of the defendant in not reducing the expenditure of the government's money. As a result, this court orders that the defendant be acquitted on the charge."

The plaintiff pleaded that the court of inquiry's decision was wrong because it confined its decision to posts used on the one town allotment and failed to consider the posts used on the other town allotments belonging to the second defendant sons. The plaintiff also submitted that the fact that the expenditure on the fence posts from Nomukeiki was cheap was an irrelevant consideration. As counsel put it, "the expenditure on posts used for these properties was the issue as they were not prison properties and any expenditure relating to them should not have been allowed."

These submissions, to a large extent, repeat what had been alleged in respect of the first decision and to that extent I have already ruled that they fail. I have considered counsel's additional submissions and the evidence he has referred me to but I have not been persuaded that the second decision of the court of inquiry is "Wednesbury unreasonable". On the evidence, it was open, in my view, for the court to reach the conclusions which it did.

The order of acquittal in respect of Decision No 2, therefore, stands.

DECISION NO 3

The third charge reads:

"That you did on or about the 1 3th July 1998 at Hu'atolitoli/Kolofo'ou as a prison officer used government property committed to your care otherwise than in the public service contrary to section 18 of the Prisons Act in that you authorised the orders for the purchase of personal clothing for yourself such as shirts, singlets, shoes, briefcase, tape cassette for your own personal use or to give to someone else and which properties appear in orders no. 29/98 -- 99, 30/98 -- 99, 32/98 -- 99 33/98 -- 99 at a cost totalling TOP $519.61 paid from the prison vote for uniforms and training under your care and control and which clothing, briefcase and cassettes are not authorised items of uniform."

The court of inquiry found that the second defendant did order the items in question and that he used them when he attended a meeting in Fiji which lasted for approximately one week. The clothing was for the second defendant's own use at the conference, apart from the T-shirts and polo shirts which he gave out as gifts at the meeting. The tape cassette was for the second defendant to record the proceedings of the meeting and the briefcase was used for carrying his stationery.

The court referred to the evidence of the acting superintendent, Sione Falemanu. It noted his evidence that it was normal practice for the government to supply stationery and clothing when travelling to such a meeting but he denied any precedent for gifts or a briefcase. The court of inquiry held, however, on the basis of other evidence, that these matters were covered by precedents, depending upon the position held by the delegate to the meeting and the type of people attending, and the court concluded that the use of the items by the second defendant on the occasion in question was not improper.

The plaintiff pleaded that the court of inquiry's decision was illegal and unreasonable because the purchase of the items by the second defendant was "unauthorised and not provided for in the prison votes".

The reference to the decision being "illegal" was a reference to the court of inquiry's application of section 18 of the Prisons Act. I have already held that lack of authorisation is not an essential element of a charge under section 18. Likewise, any reference to the prison vote is not a relevant consideration.

The plaintiffs pleading that the decision was "unreasonable" is not sufficient to establish a case upon review. In order to challenge the validity of a decision upon review, a plaintiff must be able to satisfy the court, not simply that the decision is "unreasonable" per se but that, in terms of the Wednesbury test, it is so unreasonable that no reasonable court of inquiry could ever have come to it. That is not the allegation in the statement of claim and, even if it was so alleged or should be taken to be implicit from the plaintiff's submissions, I would not have been prepared to uphold it because there was evidence, in my view, to support the court of inquiry's conclusions.

Decision No 3, therefore, stands.

DECISION NO 4

This charge follows on from charge No 3. The allegation is:

"On or about the 13th day of July 1998 at Hu'atolitoli/Kolofo'ou as a prison officer you acted negligently in not reducing the expenditure of government money from the prison vote and thereby breached sections 5 and 16 of the Prisons Act and rule 34 of the Prisons Rules in that you unlawfully ordered clothing for yourself from the vote and money of government under your care and control and which appears in (order numbers follow) and which orders were at a total expense of TOP $516.61 a large expenditure of government money for prisons which you should have taken care to reduce."

After referring to the statutory provisions and the evidence, the court of inquiry concluded:

"He (the defendant) was not careless to minimise the overuse of expenditure. As result this court orders that the defendant be acquitted. "

Under this head, the plaintiff relied upon the submissions he had made in respect of charge No 3 and he submitted that the court of inquiry's decision was unreasonable and illegal. The pleadings include an allegation that the court, "relied on wrong and hearsay evidence of junior officers" and "it wrongly interpreted the evidence of Sione Falemanu and quoted his answer out of context."

Even if there was substance in these particular allegations, it would not, in my opinion, be a sufficient basis for challenging the decision upon review.

When it comes to making assessments of the reliability of the witnesses and the weight to be given to conflicting propositions, those are all matters properly falling within the jurisdiction of the court of inquiry and this court simply has no power upon review other than to accept the findings as being correct. The position was summed up in the following passage from the Privy Council judgment in Mahon v Air New Zealand [1984] 3 All ER 201, at 221:

"Their Lordships accept that the report contains many other findings of fact by the (Commissioner) on which there had been conflicting evidence the reliability of which it was for him to assess; with his assessments a court whose functions are limited to judicial review has no jurisdiction to act otherwise than to accept them as correct."

Decision No 4 is upheld.

DECISION NO 5

The fifth charge reads:

"That you did during the month of September 1998 or thereabouts at Hu'atolitoli as a prison officer used government property committed to your care otherwise than in the public service contrary to section 18 of the Prisons Act in that you authorised the order to pay government money under your care and control to purchase your own property namely U88 Sony micro cassette telephon tape and Magellan GPS 2000 satellite valued at TOP $639.00 under order No 182/98 -- 99 under the name of 'Uluenga Savieti for him to draw that money and to give it to you and the property to become government property but you kept them after you were ordered to return them to the assistant superintendent of prisons, Sione Falemanu."

The court of inquiry noted the relevant legislation and then considered the facts. It concluded that the items of equipment were in the second defendant's care in terms of section 18 of the Prisons Act and they were government property. The court then went on to conclude:

"Did the defendant use these properties lawfully otherwise than for the purpose of his work with the prison? There is no evidence that indicates that it was used for any other purpose by the defendant with regards to these two properties e.g. work of the prisons and government.

It then acquitted the second defendant.

The plaintiff pleaded that the court of inquiry, "took into account irrelevant factors and also failed and omitted to consider the correct issues and the fact that the purchases were not authorized..." The particulars in the statement of claim refer to the original sale of the items from the second defendant to the Prison Department and then to the alleged failure of the second defendant to hand back the items after his suspension. It is alleged that the court of inquiry, "failed to correctly apply the law of conversion".

As noted in relation to Decision No 1, section 18 of the Prison's Act does not talk about "conversion". The section talks about the use of government property otherwise than in the public service. The court of inquiry held that there was no evidence that the equipment had been used other than in work for the prison and once again there seems to have been ample evidence to support that finding.

There was independent evidence that the Magellan CPS global positioning system is a useful navigational device used, apparently, for identifying the depth of the ocean and the whereabouts of reefs. The second defendant's evidence was that, in the course of his duties, he travelled between Talafoou and the prison island almost weekly and he used the equipment regularly. A number of the voyages were made at night. Evidence was given by a city retailer to confirm the reasonableness of the price of the equipment. There was similar evidence about the price in relation to the Sony Micro cassette telephone tape. The finding by the court of inquiry that the tape was used only for prison purposes was consistent with the evidence.

There is also a fundamental problem with charge No 5 which the court of inquiry could not be blamed for but it would not have made its task any easier. The charge is badly drafted. It deals with two totally different alleged offences. The first part of the charge deals with events in September 1998 when the equipment was sold to the prison. The final part of the charge deals with another incident that, according to the evidence, occurred in October 1998 when the second defendant, who had by then been suspended from duty, failed to hand over the goods in question to the new acting superintendent, Sione Falemanu.

The second defendant's evidence was that he had written to the Minister trying to clarify whether he was required to return items he held in his possession whilst he was under suspension and he told the court that he was still waiting for a response from the Minister when Mr Falemanu confronted him demanding that the goods be handed over. But the main point is that there are two different alleged offences which have been bundled into the one charge. If the charge had come before this court as an indictment drafted in that form then it would have been ruled bad for duplicity. We are not dealing with an indictment in the present case but a charge laid under section 16 of the Prison Act should avoid duplicity. Elementary fairness requires that the defendant should know in advance the exact case he has to meet and mixed up and uncertain charges are bound to lead to confusion.

In all events, I uphold the committee of inquiry's decision, not because of the bad drafting of the charge, but simply because the plaintiff has not succeeded in persuading me that decision No 5 is "Wednesbury unreasonable".

DECISION NO 6

There is a close relationship between charges No 6 and 5. Charge 6 reads:

"That you did during the month of September 1998 at Hu'atolitoli as a prison officer act negligently in not reducing the expenditure of government money from the prison vote and thereby breached sections 5 and 16 of the Prisons Act and rule 34 of the Prisons Rules in that you authorised and ordered the purchase of property belonging to yourself under the name of 'Uluenga Savieti namely: I x 88 Sony Micro cassette telephone tape and one Magellan CPS 2000 satellite total value of TOP $639.00 under order No 182/98 -- 99 whereby you received the money and kept your own property for your use and as a result you failed to exercise proper care to reduce the loss and expenditure of money from the prison of government."

The court of inquiry found that the two pieces of equipment had been paid for out of the prison vote and that the second defendant had sold the property to the prison but it concluded:

"Was he careless in not reducing the expenditure of government money? The answer according to the evidence and the amount of money and value of the equipment, that it was too cheap according to the statement of Lisiate Teulilo. This court of inquiry holds that the defendant was not careless. "

The plaintiff in his statement of claim alleges that "the court wrongly concluded that the expenditure or purchase of these two goods were cheap" and went on to submit:

"It missed the point in issue completely. The ordering and purchase of equipment not authorised or provided for in the estimates amounts to careless use or expenditure of prison money. The court acted illegally when it failed to apply the proper legal principles. "

In written submissions, the plaintiff expanded on this allegation and submitted:

"The court was not charged with the function of determining the charge on a value basis. There is no legal basis which the court of inquiry sought to rely upon in determining the charge against the defendant."

Rule 34 required the second defendant to, "have careful regard for economy and propose any saving or reduction in expenditure that may be practicable". The court of inquiry, in effect, held that in acquiring the items in question for use by the prison, the second defendant had not breached rule 34.

The plaintiff alleges that the court of inquiry missed the main point in that the purchases were not authorised but rule 34 does not talk about authorisation and, in any event, there was evidence that the payment was made out of the prison (training) vote and that the second defendant as superintendent in charge had a certain amount of discretion when it came to utilising funds for prison purposes. It was up to the court of inquiry to make of all the evidence what it deemed fit. Likewise, with the issue of the value of the products acquired and the reasonableness or otherwise of the price. Those were all issues which the court of inquiry was perfectly capable of assessing and it matters not that I may have reached a different conclusion on these factual matters. The question of weight as between competing considerations of this nature is entirely a matter for the decision-maker, not for this court on review.

I have not been persuaded that decision No 6 should be set aside and it, therefore, stands.

DECISION NO 7

Charge No 7 is, unfortunately, lengthy and rather than set it out in full, I will adopt the summary taken from the court of inquiry's decision:

"(a) The defendant is accused in case No 7/99 of disobeying the orders of the Minister of Police when: (1) at a meeting with jailers from the various prisons who were appointed by the Minister of Police he advised them that the orders of the Police Minister are unlawful.

(b) That he ordered transfers to 'Eua and Niuatoputapu without the knowledge of the Chief District Gaoler for the Tongatapu district, namely Sione Falemanu.

(c) That he refused to allow Sione Falemanu to manage and run the prison at Huatolitoli as ordered by the Minister of Police because he continued to make all orders himself."

In the official charge, it is alleged that the second defendant's conduct was contrary to rule 78 of the Prisons Rules. The relevant part of rule 78 reads: "All officers shall observe and obey all such instructions as may be issued from time to time for the better management and discipline of the prison in which they be serving..."

This charge centres around a memorandum of instructions issued by the Minister of Police on 6 January 1998 following on from a meeting of prison officers. It is the 6 January memorandum which the second defendant is alleged to have said was unlawful. The orders he is alleged to have disobeyed were contained in that same memorandum.

The court of inquiry's decision is lengthy and complex. A considerable proportion of the decision is taken up in considering legal issues such as complications over the definitions of "Chief Gaoler", "gaoler" and "Superintendent of Prisons". Reference is made to the decision of Finnigan J in a review case dealing with some of these issues and to various amendments made to the Prisons Act in recent years.

The conclusion reached by the court of inquiry in this particular decision was that the prosecutor had established the first allegation, namely that the second defendant had disobeyed the rules by telling prison officers that the Minister's orders were unlawful but it held that the second and third allegations had not been made out. The court ruled that, as there were three parts to the charge and only one part had been established, the defendant must be acquitted.

In his statement of claim, the plaintiff did not challenge the correctness of this approach. It appears to be another situation, however, where the charge has been badly drafted. Three alleged offences relating to completely different factual situations are contained in the one charge. The plaintiff, however, takes issue with the court of inquiry's conclusions that the second and third elements of the charge had not been made out. He alleges that there was evidence of disobedience and that the court was wrong in acting, in one respect, on the evidence of "junior officers". It is also alleged that the court of inquiry made a finding of a conflict of evidence which finding was "contrary to the evidence" and then there are some allegations that the court accepted a job description as a corporate plan and that this finding was contrary to evidence that had been given by the Minister of Police (the plaintiff).

I have given careful consideration to all the points raised by the plaintiff but, in my judgment, none of the matters raised are sufficiently cogent to meet the stringent "Wednesbury unreasonable" test. The Prisons Act has conferred on the court of inquiry jurisdiction to decide finally and conclusively questions which involve interrelated issues of law, fact and degree and unless the "Wednesbury unreasonable" principle can be said to apply, this court simply has no jurisdiction to interfere with its decision on these matters.

As Lord Brightman expressed it in Reg v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, at 518:

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

The challenge to decision No 7 fails.

DECISION NO 9

Charge No 9 reads as follows:

"That you did during the month of April 1997 as a prison officer act negligently in not reducing the expenditure of government money from the prison vote and thereby breached section 5 and 16 of the Prisons Act and rule 34 of the Prisons Rules in that you authorised the order of torch batteries of three types, 1000 ALK D size, TOP$1600.00; 2000 ALK AA size, TOP$1200.00; and 1000 ALK AAA size TOP$750.00. The debt incurred was paid in two parts one in the financial year '97 -- 98, $2562.50 order no. 72/98 -99. A large quantity of these batteries are still unused since the date of their purchase in April 1997 to the date hereof. That Act increased the expenditure of money from the Prison of Government."

The evidence relating to this charge was obviously confusing. The transcript is littered with references to order forms, invoices, delivery dockets and different sized batteries. It is apparent that even the court of inquiry had difficulty with some of the evidence. Its decision on this charge is disjointed and convoluted. Commenting on the evidence which indicated that more batteries appear to have been delivered to the prison than the numbers quoted in the charge, the court said in its decision, "it appears to this court that these batteries can give birth ..."

It seems that in the confusion, the prosecutor may have overlooked producing formal evidence that all of the batteries delivered to the prison had been paid for by Treasury. That omission formed an important aspect of the court's conclusions. It had no difficulty in finding that the second defendant had arranged for the batteries (which had been purchased from Moore Electronics) to be delivered to the prison at Hu'atolitoli and paid for later. It then went on at the end of its decision to answer the other two questions it had posed for itself as follows:

"5. Was the defendant careless in not reducing the expenditure? The answer to this question is, yes, because of the large quantity of batteries bought and the length of time to pay.

6. Were these properties paid for with money from the prison (Government)? The answer to that is that it cannot be confirmed.

The court concluded:

"Because the court is doubtful about this case, it rules that the defendant be acquitted."

The plaintiff submitted that the court's decision was illegal or irrational. He referred to the evidence that the prison owned only seven torches which took the D sized batteries and that it had no particular use at all for either of the other sized batteries. The court of inquiry concluded that altogether some 1760 D size, 1720 AA size and 1800 AAA size batteries had been delivered to the prison.

The plaintiff submitted that even if a particular Treasury voucher confirming payment for some of the batteries had not been produced, the oral evidence before the court was overwhelming that the batteries had, in fact, been paid for. Counsel noted, in this regard, that both a Treasury official and the manager of Moore Electronics had given evidence that the batteries had been paid for and their evidence in this regard had gone unchallenged.

In response, Crown counsel said it appeared from the evidence that during the course of the hearing the court of inquiry became aware that the original voucher authorising the payment had not been discovered and no application had been made by the prosecutor to produce the copy of the document that was before the court. Crown counsel submitted that in those circumstances, the court of inquiry's decision had been the correct one.

It seems to me, however, that there is significant substance in the plaintiffs attack on decision No 9. There was unchallenged oral evidence before the court confirming that payment had, in fact, been made and, if formal production of the duplicate voucher was considered of critical importance, then the court of inquiry could quite simply have called for its production; after all, the document was readily available to the court.

The position seems to be not dissimilar to the situation that confronted Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) FCR 155. In that case, the decision-maker had failed to take into account a relevant matter, namely, the contents of a report which, prima facie at least, supported the applicant's case. The report was before the decision-maker but he failed to take it into account. Wilcox J. held that the decision was bad in law and must be set aside. His Honour then went on to say, obiter:

"... in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it."

In the present case, it is clear from the transcript and from the decision itself, that evidence was available to establish that Treasury had paid for the goods. The court of inquiry obviously regarded that issue as being centrally relevant to its decision. It should not have felt constrained to act on that evidence simply because a voucher had not been formally produced in evidence. An administrative tribunal exercising quasi-judicial powers is not bound by the technical rules of evidence applicable to civil or criminal litigation although, of course, such rules can always be used as a useful guide.

It appears to me that there is another fundamental defect of "Wednesbury" proportions in that the court of inquiry asked itself a question which was really irrelevant to the charge it had to consider and then allowed the answer to determine the whole outcome of its decision.

The charge was that the defendant had breached rule 34 which required him to "have a careful regard for economy ..." It was alleged that the defendant had acted negligently in not reducing prison expenditure in that he had authorised the ordering of the batteries in question. The court of inquiry found that the defendant had indeed ordered the batteries and that he had been careless in so doing. That finding was, in my view, sufficient to dispose of the issue. Having made that finding, the court of inquiry did not then have to go on and ask whether the batteries had been paid for. By recklessly ordering the batteries and then taking delivery of the same, the second defendant had failed to have a careful regard for economy, in breach of rule 34.

Although the charge went on to allege that the defendant's act increased the expenditure of money from the prison vote, that particular was not an essential element in the charge itself. It is not always necessary to establish every part of a particular stated in a charge before the offence can be made out. Once the substance of the charge has been established, that is sufficient to enter a conviction.

The authorities, for example, may have subsequently been able to persuade Moore Electronics to take the batteries back with the prison being given a complete refund or they may have been able to negotiate a discount on the price but those are matters relevant to mitigation of penalty rather than to the issue of whether a charge under rule 34 had been established.

For these various reasons, I uphold the plaintiffs challenge to decision No 9. In my view, the decision is unreasonable in terms of the "Wednesbury test" and it is hereby set aside and quashed.

DECISION NO 10

The court of inquiry summarised charge No 10 as follows:

"in this case the defendant is charged because as a prison officer he was careless in not reducing the expenditure of money from the prison when he authorised the order of properties namely ITA-N80 ES Power Amp. $1020.00, Microwave oven $1079.00, 1Rx62 6 chni mixer $3998 and 1 FM microphone $670.00 from Moore Electronics, and these properties were not delivered but to enable credit to be created for the purchase of one music system instead, contrary to sections 5 and 16 of the Prisons Act and rule 34 of the Prisons Rules."

The court of inquiry found that the second defendant had authorised the purchase of the goods listed in the summons and they were all delivered, apart from the microwave oven. The court also concluded that the defendant had been careless in ordering the goods even though it accepted that "the equipment was useful".

The court appeared to accept the prosecutor's allegation that the microwave oven was ordered to make it appear in the prison records that a microwave had been acquired from funds available in the "kitchen vote", but instead of the microwave, the second defendant had taken delivery of other equipment which went to make up the expensive music system. The court commented:

"This is one of the most unwise things to happen according to the evidence brought before this court of inquiry, to order something else for the reason to acquire something different and it is only proper in the work of government to take note. It is wrong to order a microwave to make out the payment of a music system and to stop the use of it." (The English translation may not do justice to the court's actual comments in the Tongan language).

The court then went on to ask itself question no (f) which was, "were these properties paid for by Government money?" It's recorded response was:

"The answer is that it was not clear because it was only Manase Havealeta who referred to it and it was not known (where) the piece of paper from which he obtained his statement was from and where it came but it was over three thousand pa'anga. As a result this Court of inquiry is doubtful. We will not assume things but we will note the facts. As a result this Court of inquiry is doubtful."

The court of inquiry then concluded: "Based on the fact that the answer to question (c), (d), and (f) are not satisfactory and that the charge has not been proved it is ordered that the defendant be acquitted."
(emphasis added)

The reference to the answers to questions (c), (d) and (f) being "not satisfactory" is rather extraordinary considering that they were questions which the court itself had framed and answered. Question (c) was whether the goods had been delivered and the court had answered, "the answer to this was that all the properties were delivered except the microwave". Question (d) asked: "Was the music system delivered in exchange for the properties ordered?" The court had answered, "the answer to this is that the music system was the property ordered except the microwave oven."

The plaintiff drew attention to extracts from the evidence which showed how the microwave had been exchanged for additional equipment which went to make up the music system and to other extracts showing how the records had been falsified to make it appear as though the prison had acquired a microwave instead of equipment for a music system.

There was evidence that the music system acquired was expensive. The total cost of the equipment was in the order of $6700. The system was obtained for an aerobics programme for the prisoners. Mr Falemanu, who took over acting as superintendent, after the second defendant was suspended, conceded that the system was of some use although aerobics has now been replaced with a physical training programme. Mr Falemanu was, nevertheless, critical of the costs involved. He suggested that a $200 or $300 tape deck would have been sufficient.

It seems to me that there is substance in the plaintiffs strong criticism of this decision. The court of inquiry formulated the questions itself and it then went on to answer them. To hold that the answers are "not satisfactory" and then to base its acquittal decision, in the main, on that conclusion is, in my view, quite an irrational approach to adopt.

The court also appears to have taken an unduly legalistic approach to the documentation it had before it. It was critical of the fact that photocopies of invoices had been produced rather than originals. In this regard, I have already made the point that the court of inquiry was not bound by the strict rules of evidence. The court, if it had so desired, would have been free to act on the photocopies coupled with the oral evidence before it.

Reading the complete transcript relating to this charge and the decision itself, I cannot help conclude that the court, to use a colloquial expression, became bogged down in the paper trail. The risk with this type of approach in a case involving deliberate deception in the use of documents is that, at the end of the day, justice may be lost in the mire of deception.

As the plaintiff submits, there appears to have been ample oral evidence to confirm that payment had been made by Treasury for the sound system. The court of inquiry itself, in a ruling given during the hearing in response to a "no-case submission" observed: "the evidence from Moore (evidence given by manager of Moore Electronics) is he believes that it has been paid and he hasn't complained ..."

But the other factor again is that the court was dealing with the charge under rule 34 and, as I observed in relation to decision No 9, whether the goods had been paid for by Treasury is not an essential element of a charge under rule 34. The court of inquiry found that the goods had been ordered by the second defendant and delivered (with the exception of the microwave which was substituted with equipment for the sound system). The court also found that in taking this action the second defendant had shown a careless regard for economy. In my view, those findings alone were sufficient to establish the charge.

The plaintiff has persuaded me that the decision of the court of inquiry in relation to charge No 10 is "Wednesbury unreasonable" and it is hereby set aside.

DECISION NO 1/2000

This is the 11th decision. The charge reads:

"That you did during the months of May, June and July 1997 as a prison officer act negligently in not reducing the expenditure of Government money from the prison vote and thereby breached section 5 and 16 of the Prisons Act and rule 34 of the Prisons Rules in that you authorised the order of goods at a value totalling TOP$10,643.99 approximately and which goods were used in the repairs of 2 boats belonging to the Department, a boat belonging to you and a boat of Hon. Ma'afu Tulkui'aulahi. That act increased the expenditure of money from the prison of Government."

The hearing of this particular case, which was the last case in the series, began on 14 February 2000. It appears from the record that the prosecutor who had been handling the cases up until that stage had to be admitted to hospital with a health problem and a new prosecutor took over the prosecution of this particular case. On the fifth day of the hearing, the prosecutor told the court that he had just found out that the witness he had proposed to call from Treasury was travelling to Nuia and, although another witness was available he needed a special authority from the court to obtain documents and more time to collate them.

The hearing proceeded that day with other witnesses and when the court then resumed on the sixth day of the hearing, the prosecutor requested an adjournment to enable his new Treasury witness more time to search for the relevant documentation, which presumably were vouchers recording payments made by Treasury. Counsel for the defendant opposed the adjournment. He stressed that the case had then been running for a long time and his client was still under suspension from his duties.

After a short retirement, the court of inquiry ruled that no adjournment would be granted. The prosecutor then closed his case and counsel for the defendant made a "no case" submission. After hearing argument the court of inquiry upheld the application and released the defendant holding that there was no case for him to answer.

It is that decision of the court of inquiry which the plaintiff now seeks to review. He submits that it is unreasonable in terms of the "Wednesbury" test and wrong in law.

The plaintiff referred to the evidence which showed that the defendant had ordered goods and materials for work on 4 boats. Two of the boats belonged to the Prison Department, one boat belonged to the defendant himself and the other belonged to Noble Ma'afu. Evidence was given by officers confirming that the defendant, as Prison Superintendent, had ordered or approved the order of all the goods and materials used on the boats and there was other evidence called from former prisoners, including an engineer and a carpenter with some 20 years experience, who had been serving prison sentences at the relevant time, describing how they had been assigned to carry out work on the boats.

There was evidence that the cabin of the defendant's boat had been damaged in a hurricane and the cabin was fully repaired, the flooring and stern were replaced, fibreglass was applied to the top and new glass was installed. The acting Superintendent estimated that the repairs to the defendant's boat, based on the orders, would have cost $3000, for Noble Ma'afu's boat $2000 approximately and the estimated costs for the work carried out on the two Department boats was $4000.

It was not clear why the work was carried out on Noble Ma'afu's boat. There was evidence that the defendant had been granted an allotment on Noble Ma'afu's estate. There was also earlier evidence that the defendant had borrowed Hon Ma'afu's boat for use in connection with the prison.

The various passages from the evidence referred to by counsel for the plaintiff in support of his submissions under this head appeared to be convincing and the evidence was not seriously challenged in cross-examination.

In its decision, the court of inquiry seemed to have taken this same view. After considering the evidence, it stated:

"...on the face of it, the summons appears to be in order and the prosecution has discharged its duty to prove the case."

The court then went on, however, to state that there had been no proof that the defendant's actions had increased the expenditure of Government money. It said:

"... there has been no evidence of any money paid out by government which resulted in any loss and this is an essential element of this case..."

It was for this reason, apparently, that the court of inquiry upheld the no case submission.

It seems to me that there is considerable force in the plaintiffs attack on decision 1/2000. First, and this does not form part of the plaintiffs case so I simply make the observation in passing; it is unfortunate that the court of inquiry did not grant the adjournment sought by the prosecutor. The request seemed reasonable having regard to the unavailability of the original witness and the prosecutor's last-minute introduction into the case. In the context of an inquiry which had already been running for several months, it is unsatisfactory for the proceeding to conclude in the way that this one did. It is a fundamental principle of natural justice that a party must be given a reasonable opportunity to prepare his case. If time was becoming a serious factor then the appropriate approach would have been for the court to have allowed the prosecutor a further adjournment with a warning that no further adjournments would be granted.

The plaintiff's principle submission is that the court of inquiry placed too much weight on an irrelevant factor, namely a lack of documentary evidence from Treasury that government had paid the various invoices. It was submitted that not only was that factor not an essential element of the charge itself, but the suggestion that the various goods and equipment had not been paid for was contrary to the unchallenged oral evidence given by witnesses.

I agree with both these submissions. The charge was brought under rule 34. 1 have already considered rule 34 in detail. In my view, whether or not the goods have actually been paid for is not an essential element of the charge. Once it has been proven that the defendant has not had careful regard for economy (which is the relevant provision in rule 34) the charge has been made out. In this case, the court of inquiry concluded that the prosecution had proved that element of the charge.

The plaintiff has satisfied me that the court of inquiry's decision in case No 1/2000 was "Wednesbury unreasonable" and based on a mistake of law. It is hereby set aside. As the decision was given on a no case submission, that would normally result in an order for a rehearing but I shall now go on to consider remedies.

REMEDIES

Although the plaintiff has succeeded in his claim in respect of several of the cases before the court, I am mindful that the grant of remedies is still very much a discretionary matter.

In his prayer for relief, the plaintiff seeks a declaration and an order for mandamus couched in these terms:

"An order declaring the correct decisions to be entered and directing the court of inquiry to enter and substitute the orders of this Honourable Court theretofore instead. "

In the absence of any statutory authority, this court cannot upon review simply substitute its own decisions for those of the court of inquiry. As the learned authors of "Judicial Review of Administrative Action" (1996) explain it (p 186):

"The most the court can do when it finds that a ground of review has been made out is to nullify the impugned decision or act ... The court can state that the job has been done badly (in law) that it should be regarded as not having been done at all, but it has no warrant for taking the further step of doing the job itself."

The cases in question go back to events which occurred some four or five years ago. After being suspended for a lengthy period, I understand that the second defendant was dismissed altogether from his position as Prison Superintendent.

I have given anxious consideration as to whether it would be appropriate in all the circumstances to require the court of inquiry to reconvene and reconsider on a reference back the decisions which I have found to be unlawful. The court heard the various cases between November 1999 and February 2000 and I am conscious that the lapse of time between the events giving rise to the charges and any reconvened hearing would not be conducive to the best interests of justice. More importantly, however, I have not been persuaded that it is appropriate, in the exercise of my discretion, to order mandamus compelling the court of inquiry to reconvene and hear and determine the three charges in question according to law. In my view, this matter has now run its course and the issues are no longer extant. It is time to move on.

The following passage from "Civil Procedure" Vol 1, 2001, para 54.1.21 (The White Book) seems to me to be apposite:

"Even if the applicant establishes one of the grounds of judicial review, the court is not bound to grant a remedy. The remedies are discretionary ... the courts may decline to grant a remedy if a remedy is no longer necessary because the issues have become academic or are no longer of practical significance although the courts may still grant declaratory relief, particularly if the claim raises an issue which is likely to arise in other cases in the near future.

I am satisfied that the scenario envisaged in that extract is relevant to the circumstances of the present case. I consider that the justice of the case and the need, from a precedent viewpoint, to have the position clarified should any similar situation arise in the future can best be met by the granting of the plaintiff's request for declaratory relief in respect of the decisions I have found to be unlawful.

For the record, I confirm my conclusions as follows:

1. The challenges to Decisions 1, 2, 3, 4, 5, 6 and 7 fail and the acquittal verdicts stand.

2. The challenges to Decisions 9 and 10 and 1/2000 have succeeded. The acquittal decisions are declared unlawful and are hereby set aside.

3. For the various reasons mentioned above, I decline, in the exercise of my discretion, to order mandamus.

4. I make no order as to costs.