The first respondent (P) had inherited clan land under a valid will. In 1988 she sold the land to the second respondent (K). The appellant (E), the first respondent’s nephew, sought a declaration that the sale of land was void.

In 1923, Reuben Wells Leonard established the Leonard Foundation Trust to provide scholarships at eligible institutions for students meeting the following qualifications: the student was to be “needy”, white, of British parentage or nationality and Protestant.

D, a Botswana national married to an American, challenged a provision set down in the CA which discriminated against her and her children.

The plaintiff (U) was a 9-year-old schoolboy attending Nuku’alofa Primary School.

In this case, five men were charged with an offence against s.5(b) of the POA and s.50 of the PC, another case emerging out of the attempted coup of May 2000 and subsequent events. The offence was taking an engagement in the nature of an oath to commit a capital offence and carried a maximum sentence upon conviction of life imprisonment.

A wife (W) and husband (K) had separated in bitter circumstances. Local chiefs tried to reconcile the parties and in so doing forced W to return to the couple’s home on Tanna Island from Port Vila.

The Plaintiffs (L) were villagers of the village of Falealupo. They were also members of a bible class that was established at Falealupo in 1980 with permission from the Ali’i and Faipule, or Village Council (VC) or fono.

The applicant (C) sought a declaration that the ITA and amendments thereto were ultra vires Article 38(1) and (2) of the CF, and were therefore discriminatory, on the ground that it purported to tax C on the basis of his residency in another country when pensioners resident in Fiji were entitled to a tax exemption.

This was an international abduction case involving an eight-year-old boy (C) and his German parents.

 

This case concerned an appeal against a conviction following a guilty plea. The appellants – T (14), F (13), A (15) and L (16) – were arrested by Police (P) for offences of theft and housebreaking.

International instruments and law considered

Convention on the Rights of the Child (CRC)

Criminal Offences Act Cap 18 (COA)

Facts

This case concerned an appeal against a conviction following a guilty plea. The appellants – T (14), F (13), A (15) and L (16) – were arrested by Police (P) for offences of theft and housebreaking. They pleaded guilty as charged and were accordingly convicted and sentenced by a Magistrate’s Court.

Despite their guilty plea, T & Ors appealed against the conviction to the Supreme Court on grounds relating to their treatment by the Magistrate.

The Court ruled that as there was no evidence of equivocation on the guilty plea entered by T & Ors the appeal was left to the discretion of the Court. The Court would allow the appeal if there were circumstances which left the Court with serious doubt that the accused understood the procedures under which they were to be tried.

During the hearing of the appeal by the Supreme Court, it became apparent that whilst T & Ors were in P’s custody, their parents visited but were not allowed by P to see or speak to their children. As a result, they appeared before the Magistrate and pleaded guilty as charged without having seen anyone other than P.

P argued that their practice in all cases was that they did not allow anyone except a lawyer to see an accused until investigations had been completed. P argued that even if the manner in which P treated T & Ors was a breach of Article 37 of the CRC, it could only be enforced by the enactment of the necessary domestic legislation.

Issue

Could the Court apply the principles of the CRC to determine appropriate police and Court conduct and acceptable treatment of detained children?

Decision

The Court held that the manner in which P treated T & Ors from the time of their arrest to trial confirmed its doubt about their understanding of police procedures for the following reasons:

1. Although the CRC was only enforceable by an enactment of legislation, the need for the CRC arose (inter alia) from the widely accepted realisation of the need for children to be treated differently from adults in relation to police and Court proceedings. Even without the domesticating legislation, the Court was entitled to refer to the terms of the CRC as a guide on what was the acceptable form of treatment for children;

2. Article 37 of the CRC set the standard for treatment of children in police custody as follows:

“… every child in who is deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance…”; and

3. Failure to conform to those terms might result in the Court excluding evidence or reversing a decision on appeal.

Comment

The Court took the orthodox approach of non-enforceability in terms of applying international human rights conventions in Tonga’s Courts. In particular, Tonga’s accession to the CRC did not create any legal obligation on the Courts to apply the principles of the convention unless the Tongan Parliament enacted the necessary domestic laws to incorporate its principles into its national laws. However, the Court did accept that the terms of the CRC or any convention for that matter might be a guide for what was acceptable treatment.

This is a slight relaxation of the traditional approach and acknowledgement of the growing acceptance of human rights.



SPC’s Regional Rights Resource Team receives core funding from the Australian Government and additional project support from the Kingdom of the Netherlands, Pacific Leadership Programme (PLP), European Union (EU) and the German Development Bank (KfW).