THE MAGISTRATE’S COURT

The Magistrate’s Court is established under Clause 84 of the Constitution of Tonga. The Magistrate’s Court exercises both civil and criminal jurisdiction. It is the Court of first instance in all criminal cases. For serious criminal cases that must be tried in the Supreme Court a preliminary inquiry is conducted in the Magistrate’s Court and only if it is found that the accused has a case to answer is he/she committed for trial in the Supreme Court.

The Magistrate’s Court has its own general criminal jurisdiction in respect of offences punishable by way of a fine not exceeding $10,000 or a period of less than three years’ imprisonment. In addition, it has an enhanced jurisdiction to hear criminal cases remitted to it by consent of the parties from the Supreme Court where the offences is punishable by way of a fine not exceeding $50,000 or a period of seven years’ imprisonment. There are presently two Magistrates who exercise this enhanced jurisdiction.

The Magistrate’s Court hears civil matters where the amount in dispute does not exceed $10,000. It also has jurisdiction in some family cases, including claims for maintenance under the Maintenance of Deserted Wives Act and the Maintenance of Illegitimate Children Act. It hears almost all applications under the Family Protection Act.

The Magistrate’s Court has four main registries situated in Nuku’alofa (Tongatapu), ‘Ohonua (‘Eua), Pangai (Ha’apai) and Neiafu (Vava’u).

The work of the Magistrate’s Court is broadly divided between five divisions which are as follows:

  1. Criminal (including private prosecutions)
  2. Civil (including revenue matters referred to as civil inland and private inland)
  3. Family
  4. Youth
  5. Infringement (including traffic, traffic general, drunken driver, speeding, tobacco and litter and waste)

Courthouse locations

INFRINGEMENT NOTICES (TRAFFIC/SPEEDING/TOBACCO/WASTE/DRUNKEN DRIVING TICKETS)

Offences

  • Drunken driving
  • Littering and dumping waste
  • Speeding
  • Tobacco
  • Traffic general

Any person who has been issued with a notice if found to have committed any of the above offences may elect to do either of the following:

  1. Tender the prescribed fine directly to the clerk of the Magistrate’s Court (no other officers or places) within 21 days of the date of issue. No extra charges or fees. No requirements, best if you take the notice together with the sum to the clerk.
  2. Contest the notice (please note no payment tendered within 21 days of the date of issue is considered contesting the notice), a summons will be issued to the person stated in the notice together with a copy of the Notice of Infringement. Summons will be served by bailiffs only and shall be heard and determined by a Magistrate.

Please be advised all fines can be paid to the Infringement Fines Section of the Magistrate’s Court located at Sateki Road opposite Talamahu Market (former Birth Registration/Bailiff’s Office).

COURT GUIDANCE FOR UNREPRESENTED LITIGANTS(People who appear in court without a lawyer)

Going to Court: What are my Rights and Responsibilities?

Role of the Courts

The Constitution of the Kingdom of Tonga establishes the Courts of law. The Courts are responsible for administering the laws in the Kingdom. These laws are either criminal (offences against the state, such as murder or theft) or civil (involving the rights of individuals, such as disputes about debts, land or agreements). It is the responsibility of the Courts to administer these laws independently, equally, impartially, fairly, honestly and competently.

Adversarial system of justice

In Tonga, the Courts operate in what is called the ‘adversarial system’. In this system, it is the parties’ responsibilities to present their cases, and the Court (being the Magistrate or Judge) to make the decision. This means that two sides (or parties) usually contest cases or disputes before the Magistrate.

Role of the Magistrate – making decisions

 The Magistrate is the office of the Court who is responsible for deciding the case justly. The Magistrate has four key functions to perform: (i) to judge the facts of the case – what happened, (ii) to apply the law to those facts, (iii) to preside over the hearing to ensure it is conducted in an orderly and fair manner, and (iv) to make a decision or judgment, which is enforceable by law as an Order of the Court.

The Magistrate is independent and is required to treat both sides equally and fairly. For this reason s/he will explain to you what you should do at the hearing and how the hearing works. The Magistrate cannot provide any legal advice on your case – this is your responsibility: if you need help, you are strongly encouraged to consult a lawyer.

Role of the parties to a hearing

In criminal matters, the prosecution (usually the Police) brings the case (or complaint) against the accused (defendant).

In civil matters, the claimant (plaintiff) brings the case (claim) against another party (defendant).

Appearing in court and legal representation

As a citizen, you are required to appear in Court if charged with a criminal offence. You are also entitled to come before the Courts to exercise your legal rights and responsibilities. What is a right? A right is an entitlement that you have as a citizen that is enforceable by law. Should you wish to appear before the Courts, your rights and responsibilities should be clear to you before doing so.

In all cases, you have a right to legal advice and representation – that is, you have the right to be represented by a lawyer.

If in any doubt, you are encouraged to consult a lawyer for advice because the law may be complicated and you may require expert assistance. Should you choose not to exercise this right, you may appear in person. If you chose not to use your right to representation, you should understand that the Court’s decision is usually final and will be enforced by law.

Legal assistance

You may obtain legal advice and representation from a qualified lawyer who will charge a fee. You are strongly advised to seek the help of a lawyer particularly if you are charged with a criminal offence punishable by imprisonment.

Appearing in court – telling your story: facts not opinions

If you chose to appear in Court without a lawyer, you should prepare your case carefully in advance. In Court, the Magistrate will explain the order of proceedings. Be sure to do what the Magistrate tells you. You will be given an opportunity to ‘tell your story’. Prepare this in advance: start at the beginning and present it in timely order. You should include facts (what actually happened), and not opinions (what you thought). You can bring witnesses to support your story or to contest that of the other party. In all cases, it is your responsibility to be honest and tell the truth and failure to do so is punishable.

Appeals

If you are not happy with the decision of the Magistrate Court, you have a right to appeal. You must file your appeal within 28 days of the Magistrate making his decision. This is a strict time limit unless you are granted an extension of time to appeal by the Supreme Court. If you fail to file your appeal within the 28 days your right to appeal may be lost. If you appeal, you are entitled to be represented by a lawyer to conduct the appeal for you in the Supreme Court.

It is important to highlight some key differences between criminal and civil cases, these differences may affect your rights and the manner in which you exercise them.

CRIMINAL CASES

Crimes are offences against the state (such as murder or theft) that are prosecuted by the Police before the Courts.

You have ‘fundamental rights’ when charged with a criminal offence, including:-

  1. You are entitled to be represented by a lawyer if you wish.
  2. You are entitled to a fair and public hearing by the Court.
  3. You are presumed innocent until proved guilty according to law.
  4. You are entitled to be informed promptly of any charge against you, to have adequate time and facilities to prepare a defense, to be tried without undue delay, and to defend yourself in person or through legal assistance of your choosing.
  5. You are entitled to have witnesses on your behalf and to examine witnesses against you.
  6. You are entitled to an interpreter if required.
  7. You cannot be compelled to testify against yourself or to confess guilt – this is sometimes also called the ‘right to remain silent’.
  8. Juveniles (children), those with disabilities and other vulnerable people require special protection which the Magistrate should provide.
  9. You cannot be tried twice for the same offence.
  10. You may be entitled to appeal if you are not happy with the decision and, if so, you should obtain legal advice about proceeding further. You must remember that an appeal must be filed in a timely manner or the right to appeal may be lost.

Burden and standard of proof in criminal matters

In criminal cases, the prosecution or police has the obligation to establish guilt (‘burden of proof’). Guilt must be established beyond all reasonable doubt (‘standard of proof’: a very high degree of certainty). You are not obliged to prove anything but you may contest the prosecution charge (version of events). If so, you may call your own witnesses.

If you do not understand the charge, you should ask the Magistrate to explain. If you ‘plead guilty’ (that is, admit the charge), or are found to be guilty by the Court, you will be liable for a penalty imposed by the law.

CIVIL CASES

Civil cases are disputes over personal rights between individuals.

Burden and standard of proof in civil cases

In civil cases (or private disputes), the claimant (person bringing the case) has the obligation (‘burden of proof’) to establish their claim on the balance of probabilities (‘standard of proof’). The balance of probabilities means a probable degree of certainty or ‘more likely than not’. The defendant (person against whom the case is brought) may contest the claim, and may bring their own claim against the claimant (counterclaim) with or without witnesses.

The Court’s decision, which may include an order for damages and/or costs, is enforceable by law.

Understanding the Judicial Process: Criminal & Civil Hearings

As explained above, the judicial process consists of an independent person (a Magistrate) conducting a hearing between two competing parties and ‘judging’ or making a decision on the case.

In criminal cases, the parties are called the prosecution and accused (or defendant); in civil cases, the parties are called plaintiff (or claimant) and the defendant. The Magistrate hears the case and ensures that it is conducted fairly for both parties using rules of law and court procedure. In criminal cases, the prosecution has the burden of proof (or obligation) to establish guilt ‘beyond all reasonable doubt’ (the standard of proof is to a very high degree of certainty). The accused does not need to prove anything, but may contest the prosecution’s case.

In civil cases, the plaintiff has the burden of proof to establish her/his case ‘on the balance of probabilities’ (the standard of proof is lower than in criminal cases: to a probably degree of certainty).

The Magistrate is responsible for conducting a fair hearing that is impartial, providing even treatment to both parties coming before the Court, and applying the relevant law and Court procedures.

  • Criminal hearings (or trials) are generally structured as follows:-
  1. Court officer calls the case.
  2. Prosecution appears.
  3. Accused appears.
  4. Court officer reads charge.
  5. Accused enters a plea, including (if a plea of guilty) a plea in mitigation.
  6. If guilty, the Magistrate will convict the accused on his/her own plea of guilty and enter judgment. The Magistrate then starts sentencing proceedings by listening to pleas in mitigation for the purpose of sentencing from both parties. In a plea in mitigation you can tell the Magistrate about anything which you think you should get credit for when the Court decides what penalty (sentence) to impose.
  7. If not guilty (defended), the Magistrate may adjourn the case and may grant bail or proceed by consent.
  8. In defended hearings, the prosecution presents evidence to establish the elements of the offence – case against the accused with witnesses.
  9. If there is a case to answer, the accused then presents the defense with witnesses.
  10. The Magistrate makes a decision to acquit or convict – if guilty, the Magistrate enters a judgment and imposes a sentence which may be a fine or imprisonment.
  11. If convicted, the accused has a right to appeal – provided s/he has sufficient grounds for appeal and does so in a timely manner.
  • Civil hearings are generally structured as follows:-
  1. Court officer calls the case.
  2. Plaintiff appears.
  3. Defendant appears.
  4. Court officer reads the claim, and any counter-claim.
  5. The Magistrate may inquire whether the disputes can be settled informally.
  6. In contested disputes, the plaintiff presents evidence to establish her/his claim with witnesses.
  7. The defendant presents her/his defense to contest the claim and present any counter-claim with witnesses.
  8. The Magistrate makes a decision on the evidence presented, and enters a judgment which may include an order for the payment of damages, and may also include legal costs.
  9. The losing party has a right to appeal – provided it has sufficient grounds for appeal and does so in a timely manner.
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