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

CR 114-117/2002

R

v

Pohiva

Ward CJ
28 March 2003; 31 March 2003

Practice and procedure – jury selection Jury selection – avoiding bias – may attract other perception of bias

The accused were all variously charged with sedition and forgery offences which stemmed from a single document, dated 8 November 1991. This purported to be a letter from the, then, private secretary to the King and suggested His Majesty had $35M in secret bank accounts. The accused elected jury trial and the prosecution applied for an order that the jury should not be selected from the Tongatapu district where the trial is to be held but from Vava'u. The accused oppose the application on the basis that they should have a jury from this district or, if not, that it should be drawn from a district other than Vava'u. The second and third accused were elected Members of the Legislative Assembly and were also members of the Tonga Human Rights and Democracy Movement. The first accused was the son of the second and, although not a Member of Parliament, worked for the THRDM. 

Held:

1. The test was to ensure that there was no real risk of a perception by an informed and objective observer of anything other than even-handed and dispassionate justice being administered.

2. The court was satisfied that whilst there may be some perception of possible bias with a jury from Tongatapu one way or the other, a decision to use an alternative district would give rise to equally strong, although possibly different, perceptions in relation to the alternative.

3. The application was refused.

Cases considered:
R v Middleton (CA 218/00) NZ
Wallace v Abbott T9/02NZ

Counsel for prosecution: Mr Jones and Mr Kefu
Second accused in person
Counsel for first and third accused: Mr Tu'utafaiva

Judgment

These accused are variously charged with sedition and forgery offences. They all stem from a single document, dated 8 November 1991, which purported to be a letter from the, then, private secretary to the King suggesting His Majesty had $35M in secret bank accounts.

The accused have elected jury trial and the prosecution has applied for an order that the jury should not be selected from the Tongatapu district where the trial is to be held but from Vava'u. The accused oppose the application on the basis that they should have a jury from this district or, if not, that it should be drawn from a district other than Vava'u.

The second and third accused are elected Members of the Legislative Assembly and are also members of the Tonga Human Rights and Democracy Movement. The first accused is the son of the second and, although not a Member of Parliament, worked for the THRDM.

The offending letter first appeared in the newspaper "Kele'a", which is published by the first and second accused, in an edition distributed to the public in the latter half of January 2002. A further version was published by the "Taimi 'o Tonga" newspaper in early February 2002 and the second defendant participated in a television broadcast on 13 February during which the letter and the allegations in it were, it appears, vigorously debated.

On 25 February the offices of the THRDM were searched by the police and the accused were subsequently arrested.

On 7 March 2002 there was the general election which resulted in the second and third accused being elected as Members for Tongatapu. At the same election I was told from the bar table that seven of the nine Peoples' Representatives were members of the THRDM. The others were the two members for Vava'u of which one was an independent candidate and the other a member of the Kotoa movement.

Mr Jones, for the prosecution, in detailed written submissions has argued that 'there is an immediate and inevitable conflict of interest if members of an electorate have to sit in judgment on Members of Parliament for their own electorate'. He suggests that 'the political process is such that it is designed for members of the electorate to be influenced by the persons who campaign as candidates, especially those elected as their Members of Parliament .... The credibility of the accused will be a fundamental issue at trial. Members of an electorate will have already made credibility assessments on the people they do or do not vote for. To have jurors selected from this group would undermine the entire trial process'.

He also suggests that 'it is highly undesirable to have a jury on a serious criminal matter which goes to the heart of the constitutional process to be picked from the district that voted two of the three accused into Parliament. There is a very real prospect of jury influence by political affiliation in the Tongatapu district. Any trial with a jury picked from that district would have the appearance of being biased in favour of two of their elected Members of Parliament'.

He refers to the events having been significantly politicised in Tongatapu and to the 'inevitable' pre-determination of the issues. It would, he suggests, be 'literally impossible to have an impartial jury on that basis'.

His arguments in favour of selection from Vava'u are based on the suggestion that 'the jury panel from Vava'u is not directly involved in the electoral process for the two accused and would not have had to consider the alleged seditious material in that context. As such, a jury from Vava'u would be the most likely to be impartial and unaffected by any pre-trial publicity and/or publications.

The case must be decided on the evidence as opposed to political considerations. A Vava'u jury would be the most likely to do this'.

There will, he continues, 'be no prejudice to the accused by having a jury from Vava'u. Whilst the jury panel from Vava'u may have seen publicity about the alleged forged letter and matters relating to sedition, they would not have had to make any decisions on candidates prior to casting their votes in the general election. Vava'u is the district most likely to have been the least affected. Strong directions from the court would deal with any such issues'.

He concludes that 'the accused have the right to be tried before an impartial jury of their peers. Equally the Crown has the right to have the accused tried before an impartial jury uninfluenced by the accuseds' political position, publicity or other extraneous material. The only way to ensure a fair trial both in substance and appearance, is to have the jury selected from the Vava'u district list'.

In general, the defence suggest the application is really motivated by a belief that the accused are more likely to be acquitted by a Tongatapu jury and more likely to be convicted by a Vava'u jury. If the last election suggests a majority of voters in Tongatapu support the THRDM, they equally suggest the majority are against them in Vava'u. The court has no figures of the numbers of votes cast in the election or of the percentage of the eligible electorate who actually voted.

In his oral submissions Mr Jones denies that. Citing the New Zealand cases of R v Middleton (CA 218/00) and Wallace v Abbott T9/02, he suggests that the fundamental principle is as stated in the former:

"It is at the heart of our criminal justice system that any person who stands trial does so before a court which is independent, impartial and unaffected by influences which could predispose them one way or the other." The test is "to ensure that there is no real risk of a perception by an informed and objective observer of anything other than even-handed and dispassionate justice being administered."

I accept that is the correct approach.

The defence ask, if the jury is to be picked from somewhere other than Tongatapu, why is Vava'u suggested. Why not, they ask, the Niuas or 'Eua?

The prosecution point out that the television broadcast would have reached 'Eua so they would be more aware of the letter and its implications and that the logistics of selecting a jury from the Niuas for a long trial is simply too difficult.

There is no doubt that the court has the power to change the venue of a trial and equally the power to order the selection of a jury from another district. Where there is a real risk that trial by a jury from the district of the hearing would appear to be unfair or suggest that the proceedings were other than even-handed and dispassionate, the court should accede to an application for selection from another district. It must determine which district would cure the problem. There is little point in selecting from an alternative if that will give rise in itself to the same or alternative suggestions of bias whether for the accused or the prosecution. 

There is no doubt that the issue of the letter was widely discussed at the time. It prompted widespread and often heated debate by many people and feelings were clearly divided. If I am to accede to this application, I must be reasonably sure that the panel is chosen from a district that was not strongly affected by the debate. I need also to be satisfied that the issues debated were so closely linked to the election campaigns of the second and third accused that a decision to vote for or against them was determined by the same considerations as were used as the basis of debate about the letter.

I am far from satisfied of either matter. Whilst there may be some perception by an impartial observer otherwise, I do not think his perception would be changed as a result of selecting a jury from another district anywhere in the country. Those who perceive a chance of bias are far more likely to be swayed by considerations of the direction of the bias than of its existence in the first place. I believe there is an element of that in the prosecution application.

I asked Mr Jones whether he would have been making this application if the two accused had not been elected. He was unable to give an answer without more time to consider it. I found that a surprising position for a prosecutor seeking simply to select a jury from another area to ensure lack of bias from whichever direction it came.

The most important basis of trial by jury is that it should be selected from a cross section of the community with no regard to affiliations or loyalties. Random selection is undoubtedly the best safeguard of impartiality and fairness. That will apply in this case as in all others. 

There is no way of knowing whether the potential jurors in this case voted for the accused or against them. We have no way of knowing, in the possible contest of loyalties this case could provoke, what are their views of the dangers of this letter. If the prosecution or the accused recognise a juror as having known affiliations, they can correct it by challenge.

Whilst I acknowledge the foundation of the prosecution concern, I do not accept it is cured by choosing an alternative venue for jury selection. The debate about this letter at the time was too widespread to be able to find a region where it was not discussed. Even if it became 'politicised' at the time as the prosecution suggest, I am not satisfied the foundation of people's opinion about the letter was the same as their decision of how to vote. Neither am I satisfied that the chance of having a jury of supporters of the second and third accused is any greater than one of people who voted the other way.

It is a requirement in all trials to warn the jury that its verdict must be based on the evidence and to disregard anything they may have heard or might hear elsewhere. In Tonga it is especially important. Many cases are tried here by juries who will almost certainly have heard and very likely have taken part in discussions about the reported 'facts'. A properly firm direction on the dangers is an adequate safeguard. I do not consider this case is so much of an exception that it needs special treatment.

I am satisfied that whilst there may be some perception of possible bias with a jury from Tongatapu one way or the other, a decision to use an alternative district will give rise to equally strong, although possibly different, perceptions in relation to the alternative.

The final point raised is that, in a district where feelings are so divided, there is a real risk of a 'hung jury' – one that cannot agree. I accept that may be a particularly substantial risk in this particular case but I am satisfied that the causes of it here are just as likely to surface in a jury selected from any part of the Kingdom.

The application is refused.