Tapa'atoutai v Police [2004] TOSC 29; AM 008-009 2004 (9 June 2004)

IN THE SUPREME COURT OF TONGA
APPEAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. AM. 8-9/03

BETWEEN:

1. VILIAMI TAPA’ATOUTAI
2. MATEAKI LOLOHEA
Appellants

AND:

POLICE
Respondent

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Niu for the appellants and Mr Kefu for the respondent

Date of hearing: 3 June 2004
Date of judgment: 9 June 2004

JUDGMENT

I am obliged to both counsel for producing written material in this appeal of a particularly high standard. I refer in this regard to the appellants' grounds of appeal and Crown Counsel's submissions in response. The extent and nature of the written information provided resulted in a significant saving in court hearing time.

The two appellants escaped from Hu'atolitoli Prison on 24 January 2003. They voluntarily returned to the prison 11 days later. They were subsequently charged with escaping and, after pleading guilty in the Magistrates' Court, they were each sentenced to eight months imprisonment.

The Court was told that they then wrote a joint letter to the Chief Justice which was treated as an appeal. Mr Niu agreed to take up their case and, by consent, the convictions were quashed and the matter referred back to the Magistrates' Court for rehearing.

On the second occasion, the two accused pleaded not guilty. The matter went to a full hearing with the prosecution calling seven witnesses and both accused, along with two other witnesses, giving evidence for the defence.

After hearing legal submissions, the magistrate issued a lengthy written judgment convicting each accused. The sentence imposed was two months imprisonment in each case. It is against that second conviction and sentence that the appellants now appeal to this court.

I set out below the summary of material facts taken from Mr Kefu's submissions:

"I. The first appellant, Lolohea, is currently serving a sentence of 6 years imprisonment for housebreaking, theft and possession of Indian hemp.

II. The second appellant, Tapa'atoutai, is currently serving a sentence of 15 years imprisonment for manslaughter.

III. During the appellants incarceration, they were both repeatedly put into maximum security for various prison offences under rule 159 of the Prison Rules.

IV. On 9 February 2002 the second appellant was put in the punishment cells for swearing and attempting to attack a prison officer.

V. On 21 December 2003 the first appellant was put in the punishment cells for running away on 20 December 2003 when he was part of a group of prisoners assigned to work at the Royal Palace in Nuku'alofa, and he was found at Viola Hospital in a drunken state.

VI. On 23 January 2003 the first appellant was put in handcuffs in the sunning cell because he was disobedient by shaking the doors of the punishment cells, and he was required to make a statement as to why he was shaking the doors but he refused.

On 23 January 2003 the second appellant was put in handcuffs in the sunning cell because he was disrespectful, fieme'a by shouting he wanted to "suck a brain", and he was handcuffed to maintain the peace of the prison.

VIII. The first appellant's hands and legs were handcuffed around a pipe while he was lying on the floor, and he was wearing shorts and a singlet.

IX. The second appellant's hands were each handcuffed to the iron bars of the door to the punishment cells.

X. The appellants were handcuffed in this manner throughout 23 January 2003, and 24 January 2003, and were only released when they requested to go to the toilet or when they were fed.

XI. Around 10 p.m. on 24 January 2003 the appellants escaped from Hu'atolitoli Prison.

XII. The appellants returned to Hu'atolitoli Prison voluntarily on 4 February 2003."

In his grounds of appeal, Mr Niu provided additional details of the punishment imposed. His description of these events was unchallenged:

"1. About 9 a.m. on Thursday 23/1/03, Lolohea was ordered to wear only a pair of shorts and a singlet and to lie on his back on the concrete floor of the sunning cell underneath and along where a 2 inch galvanised pipe was running from one concrete wall of the cell to the opposite concrete wall about 18 inches above the floor. His hands were then handcuffed above and hanging from the pipe, and his ankles were similarly cuffed above and hanging from the pipe with leg cuffs. He was thereby left exposed to the sun (the cell has no roof except for diamond wire mesh cover at the top) during the day and the cold and dew of the night.

2. At about 9:30 a.m. of the same morning, Tapa'atoutai was similarly ordered to wear only a pair of shorts and a singlet and to stand with his back against the outside of the steel bars of the closed door of his punishment cell (which has a roof). His right-hand was then cuffed above his right shoulder to the steel bar back behind him and his left hand was similarly cuffed above his left shoulder to the steel bar behind him with another pair of handcuffs. He would have to hang by his wrist if he was tired of standing or wanted to sleep.

3. They were both left at the mercy of the mosquitoes, which were always plentiful there.

4. Neither was told how long they were to be so cuffed. The only relief they had was when they were uncuffed to go to the toilet or have their meals, which was only for about 5 to 10 minutes.

5. They suffered and were tortured by the pain of the hand and leg cuffs, the bite and sting of the mosquitoes, the absence of sleep, the heat of the sun and the cold and dew of the night, and of the wet of the rain. The Chief Gaoler, Moleni Taufa (the Superintendent of Prisons) had ordered and had intended that these two prisoners be so punished and tortured in order that they would learn to obey and comply with the prison rules.

6. No such punishment and no torture is allowed under the Prison Act or Prison Rules. The punishment was unlawful.

7. Lolohea repeatedly asked the prison officers to allow them to consult a lawyer. Tapa'atoutai heard the requests. Other prisoners heard the requests. The request was not granted at all.

8. At about 10 p.m. on Friday night 24/1/03, with no hope of having a lawyer to see them and no knowledge when their torture would be over, they broke the cuffs off and broke out of Hu'atolitoli Prison and went into hiding.

9. At first they tried to see the Minister of Police and then the Chief Justice (but the Minister had shifted from his residence at Fasi to the fenced and guarded compound of Longolongo and the Chief Justice was away in Tuvalu until 3/2/03) to complain about their treatment in the prison. They decided to wait for the Chief Justice to return.

10. On 4/2/03 they wrote a letter to the Chief Justice about what had happened to them and gave it to a friend to take for them. They then went and gave themselves up to prison authorities on the same day."

The grounds of appeal are as follows:

"(a). The punishment given to the appellants was unlawful;

(b). The appellants were justified in breaking out and escaping from prison in the circumstances in which they were in;

(c). The defence of duress of circumstances applies to their cases, and

(d). The evidence of the appellants concerning their reason for breaking out and escaping were not challenged by the prosecution in cross-examination or rebutted by any contrary evidence put to them."

The basic principle when it comes to the discipline and control of prisoners is that set out in Halsbury Vol 77, para 1138:

"The ordinary civil and criminal law operates in prisons and governs prisoners and prison staff, subject only to the special legislative provisions governing penal establishments and their inmates. In spite of his imprisonment, a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication. Prisoners are subject to a special regimen and have special status; but they remain invested with residuary rights pertaining to the nature and conduct of their incarceration . . . It is an offence against discipline for a prisoner to disobey any lawful order or to fail to conform to any rule or regulation of the prison. However, the prison authorities must act in accordance with the ordinary law and do not have unlimited powers over prisoners merely by virtue of their imprisonment."

The extent to which a prisoner's rights are taken away from him is governed by the provisions of the Prisons Act (CAP. 36) and the Prison Rules. The statutory authority to make rules is conferred by section 5 of the Prisons Act. Section 5(b) includes a power to make rules for the discipline and punishment of prisoners.

Rules 158 -- 167 are the rules dealing with prison offences. Rule 158 states:

"No punishment or privation of any kind shall be awarded against a prisoner for a prison offence except as provided in sections 24, 28, 29 and 30 of the Prisons Act, and in these rules."

Rule 159 then lists a series of acts and omissions, any one of which is declared to be a prison offence. The regime for dealing with any such prison offence is that contained in section 30 of the Prisons Act.

Section 30 provides that prison visiting officers may take evidence and examine prisoners in respect of any alleged prison offence and, if satisfied that the prisoner is guilty of such offence, the prison visiting officers may order him to be punished, in the manner prescribed, by one or any of (a) solitary confinement, (b) forfeiture of marks, (c) corporal punishment.

The appointment of prison visiting officers is governed by section 17 of the Prisons Act. The appointment is made by His Majesty in Council. Not less than 2 nor more than 4 persons are to be appointed prison visiting officers for each prison district.

Significantly, neither counsel in the present case was able to confirm whether prison visiting officers had ever been appointed under section 17 of the Prisons Act. The Act came into operation as long ago as 17 July 1923.

Crown Counsel did, however, quite properly concede that the prison offences allegedly committed by the two appellants had not been dealt with in the manner prescribed in section 30 of the Act and, to that extent, the punishments imposed by the prison officials were unlawful.

Whilst reported English decisions such as Arbon v Anderson [1943] 1 All ER 154 at 156 and Becker v Home Office [1972] 2 All ER 676 at 682 make it clear that Prison Rules do not confer any rights on prisoners or give rise to a cause of action against prison officials for their breach, a failure to comply with the requirements of the Prisons Act in relation to the appointment and functioning of prison visiting officers is something more serious.

Lord Goddard noted in the Arbon case that access to "visiting committees" (the English equivalent of prison visiting officers - now called "boards of visitors") is the safeguard against the abuse of power by prison officials. If that safeguard is not in place, however, then prison authorities carrying out any form of disciplinary punishment against prisoners run a very real risk of facing civil actions for damages, of the type envisaged by Lord Bridge in Hague v Deputy Governor of Pankhurst Prison [1990] UKHL 8; [1991] 3 All ER 733 or, perhaps, under the tort of misfeasance in public office.

The appointment of prison visiting officers pursuant to section 17 of the Prisons Act is, therefore, a matter which, if not already in place, needs to be addressed with priority.

Crown Counsel further conceded that the use of handcuffs as a form of punishment (which was admitted by the prison officers under cross-examination) was also unlawful. Rule 170 allows the use of handcuffs only as a means of restraint in the case of a prisoner whose conduct is so violent as to render such action necessary.

I have no hesitation in concluding that the prison offences allegedly committed by the two appellants were never processed in accordance with the procedure prescribed in the Prisons Act and to, that extent, the punishments inflicted were, as Crown Counsel rightfully concedes, unlawful.

Mr Niu submits that against that background, the defence of duress of circumstances applies.

Duress of circumstances is a relatively recent concept. Archbold (2001) notes, para 17-124, that the use of the word "duress" in the context of the defence is misleading:

" "Duress of circumstances" has nothing to do with one person being told to commit the crime "or else": it relates to a situation where a person is driven to commit a crime by force of circumstances."

As Lord Hailsham expressed it in R v Howe [1986] UKHL 4; [1987] 1 All ER 771, 779:

"The fact is that, where it is applicable at all, in a long line of cases duress has been treated as a matter of defence entitling an accused to a complete acquittal . . . duress arises from the wrongful threats or violence of another human being."

Once the issue of duress is raised by the evidence, it is for the Crown to prove beyond reasonable doubt that the defendant was not acting under duress. To his credit, Crown counsel does not seek to dispute the application of the defence of duress of circumstances in the present case. The punishments the appellants were subjected to were both extreme and unlawful. Indeed, it is difficult to take exception with Mr Niu's description of the suffering the two men endured as "torture".

I find it unnecessary to have to consider the remaining grounds of appeal. For the above stated reasons, I am satisfied that the appellants, at all material times, were acting under duress and that they should, therefore, have been acquitted in the court below. Accordingly, I uphold the appeals. The convictions and sentences appealed against are quashed.

Mr Niu points out that he has acted for the appellant prisoners without any financial reward and he, therefore, seeks costs against the police, as respondent, in respect of both the Magistrates' Court hearing and this appeal.

Mr Kefu acknowledges that the Court has a discretion in the matter but he submits that the respondent in the present proceeding has conducted itself in a perfectly proper way and that an award of costs against it is not, therefore, justified.

Whilst having every sympathy with the sentiments expressed by Mr Niu, I find myself in agreement with Mr Kefu's submissions. Costs are not normally given on acquittals even at the appeal stage. It would have been different had there not been a proper foundation for the charges in the first place but that is far from the case. The respondent, as prosecutor, has acted with complete decorum throughout, particularly at the appeal stage. It should not, therefore, be held accountable for wrongs done before the case ever came before the courts. I, therefore, make no award as to costs.

NUKU'ALOFA: 9 JUNE 2004

JUDGE