Re Fakafanua [1998] TOLawRp 7; [1998] Tonga LR 57 (31 March 1998)

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

555/1998

Re Fakafanua

Lewis CJ
21, 23, 24 March 1998; 31 March 1998

Habeas corpus — Police powers of arrest and questioning
Practice and procedure — habeas corpus

The Hon Fakafanua applied for the issue of a writ of habeas corpus against Fifita and the Minister of Police, the Hon Clive Edwards. Investigating officers from the Police wanted to interview the applicant concerning alleged forgery offences. Investigations proceeded some little way. The Police had in their possession allegedly forged documents. They sought to ask the defendant questions about his knowledge of the documents. At the Central Police Station the applicant was accompanied and advised by counsel who advised his client not to answer any questions. There were some heated exchanges between counsel for the applicant and the investigating Police. In the result the applicant Fakafanua was arrested without warrant by Police on the ground that they suspected that the Hon Fakafanua had committed the offence of forgery. He was arrested so that he could be questioned with a view to the Police establishing whether or not he had committed the offence of forgery (or indeed whether or not he had committed no offence). The Hon Fakafanua was cautioned and he was then taken into the Nuku’alofa Police station. In the Police Station he was asked for formal particulars — his name and the like.

Held:

1. The issue was whether section 22 of the Police Act (Cap 35) could be construed as conferring on the police power to question a person arrested and charged without warrant before taking that person before a magistrate to be charged in court and, if so, the degree to which the police had such power?

2. Section 22 did not give police officers who decide that there are grounds to arrest without warrant the right to question the suspect arrested concerning the crime for which he has been arrested.

3. The section is a procedural section. Police must in all things act without any unnecessary delay. The section requires the police to take or send the suspect before a magistrate without any necessary delay. “Unnecessary delay” is to be judged from the circumstances of each case by the Court not by the police.

4. The section does not authorise the police to arrest without warrant for the purpose of questioning the suspect about the crime for which he or she was arrested.

5. The arrest and the obtaining by police of the personal particulars of the suspect once completed required police to take or send the suspect before a magistrate or designated police officer as soon as practicable to be charged. If it was not practicable to take or send the suspect before a magistrate or designated police officer within 24 hours then the police were obliged to inquire into bail and the requirements of the Bail Act.

6. The volunteering by a suspect of information connected with the crime being investigated during "routine moves" — that is during the time in which the police were attaining the suspect's particulars — did not give rise to a right to question him further about his volunteered information before he was taken or sent by police before a magistrate or police officers designated by section 22.

NOTE: the respondents subsequently successfully appealed this decision to the Court of Appeal. The Court of Appeal judgment is reported at page 127.

Cases considered:

Finau v Kingdom of Tonga (unreported, C110/98, Ward C.J, 12 May 1992)

Holgate-Mohammed v Duke [1984] AC 437; [1984] 1 All ER 1054

Soakai v Taulau, Minister of Police and the Government of Tonga [1981-1988] Tonga LR 46 (PC)

Wiltshire v Barrett [1965] 2 All ER 271; [1965] 2 WLR 1195 (CA)

Statutes considered:

Bail Act 1990

Evidence Act Cap 15

Police Act Cap 35

Rules considered:

Supreme Court Rules 1991

Counsel for applicant: Mr Niu
Counsel for respondent: Solicitor General

Judgment

Preliminary

A writ of Habeas Corpus was issued and served on the respondent Fifita. The Minister of Police the Hon Clive Edwards by what appears to be an oversight was not served. Both respondents however submit to the jurisdiction of this Court and waive proof of formal service.

Provision for the application for the writ of Habeas Corpus is made by R.S.C. Order 28. The applicant is a Noble of the realm and a former Minister of the Crown presently under investigation by Police for suspected breaches of the criminal law.

The Facts

The compass of facts is narrow. For the purposes of this decision the Court is asked to assume (without finding) the following facts;

• that at all material times investigating officers from the Tonga Police were desirous of interviewing the Applicant Fakafanua concerning alleged forgery offences.

• investigations proceeded some little way. The Police had in their possession allegedly forged documents. They sought to ask the defendant questions about his knowledge of the documents.

• at the Central Police Station the applicant was accompanied and advised by counsel who advised his client not to answer any questions. There were some heated exchanges between counsel for the applicant and the investigating Police.

• in the result the applicant Fakafanua was arrested without warrant by Police on the ground that they suspected that the Hon Fakafanua had committed the offence of forgery. He was arrested so that he could be questioned with a view to the Police establishing whether or not he had committed the offence of forgery (or indeed whether or not he had committed no offence).

• the Hon Fakafanua was cautioned and he was then taken into the Nuku’alofa Police station.

• in the Police Station he was asked for formal particulars

— his name andthe like.

The Law

The issue therefore seems to me to be whether the police acted without any lawful authority by detaining the applicant in the circumstances outlined above given the provisions of the Police Act Cap 35 section 22. Putting it more precisely the question is:

Can the Police Act section 22 be construed as conferring on the Police, power to question a person arrested and charged without warrant before taking that person before a Magistrate to be charged in Court — and if so to what degree do the Police have that Power?

It must be said immediately that the precise question has been already considered and answered in the Privy Council decision of Soakai v Taulau, Minister of Police and the Government of Tonga [1981-1988] Tonga LR 46. The question is not novel. It has been considered many times in many jurisdictions.

In the Judgment the Privy Council made it clear that s 22 of the Police Act Cap 35 “is a provision aimed at safeguarding the rights of a citizen to freedom from arrest and detention without formal warrant first being obtained for that purpose” (p 6).

The English Common Law is expressed in a passage from “Clerk and Lindsell On Torts” 15th Edition page 687. The Police Act would appear to be based on this statement of that law. The learned authors conclude:

“whenever a power of arrest without warrant on a criminal charge is given it is for the purpose of investigation before a magistrate, and no arrest can be justified which is not for this purpose. Arrest is the first step in criminal proceedings against a suspected person on a charge which is intended to be judicially investigated ... There is no power in the Police save under special statutory authority to detain for inquiries or questioning independent of their powers of arrest”. (my emphasis)

I have come to the conclusion that it was not the intention of the Legislature in enacting Cap 35 section 22 subsections (1) and (2) as amended, to allow arresting Police Officers to question persons arrested without warrant as to the substance of the offence for which they have arrested the person.

In the context of special statutory authority, the respondents rely upon Holgate-Mohammed v Duke [1984] AC 437; [1984] 1 All ER 1054 in justification of their position as to their right to interrogate the arrested person when arrested without warrant. In my opinion that is an example of the special statutory authority referred to by Clerk and Lindsell.

Once arrested the Police have every right to ask questions of the person to establish his or her identity and address. This right derives from the reference to “routine moves” by the Privy Council in Soakai.

The respondents here argued that by “routine moves” the Privy Council meant to suggest that Police may then move to questions designed to obtain evidence which may lead to conviction or release on the substantive enquiry in which they are engaged.

In my opinion that is an erroneous view of the law. Once the routine moves are completed that is that the name, address etc of the person arrested have (without unnecessary delay) been established it is the unqualified duty of the Police to take or send the person arrested before a Magistrate there to be charged.

Parliament in enacting s 22 of the Police Act recognised that there are times when it is not practicable for Police to find a Magistrate — crime is not always committed with an eye to convenient timing — arrests are not always effected during conventional work hours and so provision is made for Police to resort to alternative measures but only after all reasonable measures have been practically attempted to bring the accused before a Magistrate. But that does not factually arise for determination here.

It was argued by the respondents that to take a person before the Magistrate without first questioning the suspect would run the risk of civil action at the instance of the person arrested if he were able to demonstrate his innocence and had been deprived of that opportunity by not being questioned before being taken before the Magistrate. The respondents rely upon Wiltshire v Barrett [1965] 2 All ER 271; [1965] 2 WLR 1195 (CA). The arrest is in my view the determinant of that issue. The evidence sufficient to justify the arrest must exist before the arrest. The taking or sending before the Magistrate is the consequential safeguard which Parliament requires where no warrant exists.

In Finau v Kingdom of Tonga (unreported, C110/98, Ward C.J, 12 May 1992) the arrested person was kept in custody for a little over 12 hours. He sued the Police for wrongful arrest and false imprisonment. The Court held that since at the time of arrest it in fact seemed practicable that a Magistrate would be available within 24 hours (as he in fact was) therefore the appellant’s detention was lawful within the meaning of the Act.

Wherever a person is arrested pursuant to the provisions of s 21 of the Act the Police must decide whether as a matter of practical possibility he can be brought before a Magistrate within 24 hours. If Police conclude that he may be so brought then he may be held for this period of hours but without being questioned about the substantive offence until the Magistrate is available. As soon as the Magistrate becomes available Police must take or send the suspect before the Magistrate. If Police conclude the Magistrate will not become available within 24 hours then the suspect must be taken before the Police Officer designated in s 22(2) of the Act to be granted or refused bail.

However there may be no questioning by Police of the suspect beyond that necessary to verify his identity before he is taken or sent before the designate Police officer under s 22(2) of the Act.

The following principles emerge from the present Application:

1. The Police Act Cap 35 s 22 does not give Police Officers who decide that there are grounds to arrest without warrant the right to question the suspect arrested concerning the crime for which he has been arrested.

2. The section is a procedural section. Police must in all things act without any unnecessary delay. The section requires Police to take or send the suspect before a Magistrate without any necessary delay.

3. “unnecessary delay” will be judged from the circumstances of each case by the Court not by the Police.

4. The section does not authorise Police to arrest without warrant for the purpose of questioning the suspect nor does the section authorise Police to question the suspect about the crime for which he or she is arrested at any time.

5. The arrest and the obtaining by Police of the personal particulars of the suspect once completed requires Police to take or send the suspect before a Magistrate or designated Police Officer as soon as practicable to be charged.

6. If it is not practicable to take or send the suspect before a Magistrate or designated Police Officer within 24 hours, then Police are obliged to inquire into bail and the requirements of the Bail Act.

7. The volunteering by a suspect of information connected with the crime being investigated during the “routine moves” — that is during the time in which Police are obtaining the suspect’s particulars — does not give rise to a right in Police to question him further about his volunteered information before he is taken or sent by Police before a Magistrate or Police officers designated by s 22.

8. Investigating Police must at all times bear in mind the proviso to s 22 of the Evidence Act Cap 15 which provides:

“22. It shall be no objection to the admissibility in evidence of a confession that it was made —

(a) under a promise of secrecy; or

(b) in consequence of a deception practiced on the accused person for the purposes of obtaining such a confession; or

(c) when the person making it was drunk; or

(d) in answer to questions which the person making the confession need not have answered; or

(e) without any warning having been given to the person making it that that he was not bound to much such a confession and that evidence of it might be given against him.

Provided always that where a confession is alleged to have been made to a Police Officer by the accused person while in custody and in answer to questions put by such Police officer, the Court may in its discretion refuse to admit the evidence of the confession.”

The Applicant is now at liberty. Consequential Orders and declarations are now immaterial to the Writ issued.

Police must now judge what they next must do with the investigation. As to the Writ before this Court it is now discharged as is the bail order which brought the Applicant into the custody of this Court.

Subject to the observations made in the foregoing judgment the Applicant is now released. After hearing Counsel I Order that each party bear its own costs.