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11 November 2022

Chief Justice puts a lid on Crown, defence squabble: ‘If any issue arises, if I get a call, I deal with it’

Monday 27 February 2023 | Written by Al Williams | Published in Court, Crime, National


Chief Justice puts a lid on  Crown, defence squabble: ‘If any issue arises, if I get a call, I deal with it’

Chief Justice Patrick Keane has settled an ongoing dispute between a Crown Prosecutor and defence lawyer in the High Court at Avarua.

Defendant Joshua Nga Utanga’s name was called in court on Friday as he faces five charges of assaulting a female.

The matter was heard as a criminal call over with defence lawyer Norman George updating the court on progress.

While witnesses were not available to July as the matter was going to a jury trial, Crown prosecutor Jamie Crawford said the trial would likely go ahead in September.

Crawford then mentioned the charges had been transferred from the Criminal Court to the High Court, as she referenced the dispute.   

She explained that at an earlier hearing in front of a Justice of the Peace, she had argued Crown’s request for bail conditions, including not offering violence, no contact with witnesses, not to leave the Cook Islands without permission, and to surrender his passport. She added the charges had been moved to a Chief Justice, so they needed to be dealt with by a Chief Justice. 

George had disputed the matter, saying, to involve a Chief Justice was “beyond the law; I intend to raise it with a Chief Justice to delegate it to JPs, there should be more discretion”.

The argument had centred around Utanga’s travel arrangements, as he wanted to go to New Zealand.

CJ Keane said he had been briefed via email by the court registrar about the matter, and in the absence of a specific rule, “once the case is transferred then a judge in this court has jurisdiction.”

George explained his client appeared in the Criminal Court and had been able to travel under his bail conditions.

“My argument is that JPs are appointed cases, we don’t have Judges, bail is critical.

“When this matter came up it was like going back to square one.”

George said he was concerned with the efficiency of the bail system.

“I was hoping that a discretionary decision could still be granted by a JP.

“That’s the position we are in, we need clarification.”

CJ Keane said he understood George’s point, and speaking in “broad principle”, he said “a JP has their jurisdiction and High Court has their jurisdiction”.

“When it is transferred to the High Court with bail it is up to a Judge in the High Court.

“So if any issue arises, if I get a call, I deal with it straight away.”

He said in New Zealand, once District Court had dealt with cases, matters never went back to District Court.

“It is important as a matter of inconsistency.”

CJ Keane said he would look at the matter, but not in court on Friday.             

George and Crawford were involved in heated arguments in court earlier this month on two occasions.

George took exception after Nga Utanga’s February 1 appearance before JP Tangi Taoro, and Crawford’s request for his passport to be surrendered.

While George objected at the time, Crawford said it was not a matter of cutting travel, but needing to know where Utanga was.  

George filed an application to have Utanga’s passport released and was then advised the matter was going before a Chief Justice.

His client had paid his airfare and there was an urgency for him to travel.

Crawford argued they were the usual bail conditions and the charges had been moved to a Chief Justice so they needed to be dealt with by a Chief Justice. 

The Crown did not oppose him travelling on the application in principle, but what George was presenting was “circumventing”, she said.

George asked Crown Law to quote legislation which determined such matters and Crawford said it was legislated.

George claimed, in practicing law for 30 years, there had never been a problem with bail.

To raise this issue without citing legislation was not good enough, and in begging the court to let Utanga go, he asked the court to exercise discretion.

JP Taoro said it was the first time she had come across such a matter and granted the application, but asked the matter be raised with CJ Keane.

Utanga faces five assault on female charges and has entered not guilty pleas while the matter is set to go to a jury trial.  

Defence lawyer Mark Short had previously represented Utanga on a single charge of assaulting a female, but it was George who appeared on his behalf on February 1. 

During that appearance George told Crawford that charges had been added, and that he would be asking for a jury trial.

Crawford said the matter had already been set down for a defended hearing and witnesses were waiting in court.

The pair continued to argue before going into chambers.

When the matter was called about 15 minutes later, George, on behalf of Utanga, advised the court he intended to head to a jury trial and enter not guilty pleas to all charges.