Date of text
Type of court
National - higher court
Court name
Supreme Court of Tonga Appelate Jurisdiction
Reference number
TOSC 63; AM 13 of 2018
Res Judicata, Damages, Evidence
Hon. Justice Niu

The respondent plead guilty to an offence under  Regulation 7 of the Environment Management (Litter and Waste Control) Regulations 2016 for dumping waste and causing pollution within the coastal water of Pangaimotu Island in the Kingdom of Tonga and was sentenced to the maximum fine of $1,000 by the Magistrates Court.

The Prosecution (appellant) appealed the sentence on the basis that it was manifestly inadequate and that a custodial sentence was necessary based on the devastating damages caused by the respondent’s actions to the environment. The Prosecution relied on a report of the findings of the investigation carried out in respect of the damage caused but was not available to the respondent at the time of the sentencing.

The report was strongly opposed by the defense counsel, as it was not before the lower court at the time of the hearing and it was unfair and improper to be considered in the appellate court.

The report indicated that sea water samples were taken from 6 sites next to the village of Pangaimotu and mainland Vava’u including the recreational swimming locations whereby it showed that phosphate, ammonia, nitrate and faecal coliforms exceeded the recommended guideline values for marine environments and that it was most likely due to the storm water collecting animal faecal matter and septic leakage and illegal dumping of waste.

Even though the report showed evidence of microbiological substances including excessive level of faecal coliforms the Court of Appeal stated that the analyst was uncertain as the term “is most likely” was used indicating uncertainty.  Therefore the report could not assist the Court to ascertain damage caused by the respondent.

The Court of Appeal saw no fault in the lower court’s sentence.  The Court also found that the respondent had been charged twice for the same offence and had been previously fined $2,000.00, a case of double jeopardy but where the respondent had raised no defence. The appeal was dismissed and parties ordered to bear their own cost in this matter.