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Sullivan v Police [2023] TOSC 42; AM 3 of 2023 (4 August 2023)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION

NUKU’ALOFA REGISTRY


AM 3 of 2023

BETWEEN:

ROBERT GUY SULLIVAN Appellant

-v-
POLICE Respondent


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr T. ‘Aho for the Appellant
Mr J. Lutui DPP for the Respondent
Hearing: 4 August 2023
Judgment: 4 August 2023


Introduction

  1. Section 70 of the Intoxicating Liquor Act (“the Act”) provides:

Constable may enter licensed premises in performance of duty

It shall be lawful for any constable to enter any licensed premises at any time for the purpose of preventing or detecting the violation of any of the provisions of this Act which it is his duty to enforce.

  1. The Appellant is the licensee of the Billfish Bar in Nuku'alofa (“the Billfish”). On 17 March 2023, around 9 p.m., two uniformed Police Constables, Senituli and Mafi, entered the Billfish. There were around 80 to 90 patrons inside. The Appellant asked them why they were there. Constable Mafi is alleged to have said that they were there as part of a patrol and that it was their duty, as Police officers, to check the property and health and safety of the people in it. The Appellant is alleged to have then said to Constable Mafi “who the fuck are you to come to my apartment”. As a result, the Appellant was arrested, during which he is alleged to have kicked Officer Senituli in the stomach and tried to wriggle free. The Appellant was later charged with swearing at an officer and obstruction contrary to ss 57 and 113 of the Criminal Offences Act.
  2. In the Magistrates Court,[1] the Appellant has contested the charges. The trial of the matter commenced before Senior Magistrate Kaufusi. The Appellant raised a preliminary issue that the Police entered the Billfish without lawful authority, that the remaining evidence, taken at its highest, could not support a conviction, and therefore the proceedings should be dismissed.
  3. On 31 May 2023, after considering affidavits of witnesses filed by the parties and their written submissions, the learned Magistrate determined that the Police entry into the Billfish was lawful. As a result, the Appellant’s application was refused.
  4. The Appellant herein appeals against that decision.

Magistrate’s decision

  1. After reciting a summary of the facts as alleged, the learned Senior Magistrate referred to s 8 of the Tonga Police Act and s 70 of the Act. Relevantly, he then held:
“Section 8 of the Tonga Police Act sets out the functions of the Tonga Police. It is clear that the Police had gone to perform their duty. Probation Constable Rodney Senituli had stated they had gone on patrol to the bars to ensure public safety in the area. And Senior Constable Mohenoa had stated that they had gone to Billfish to ensure public safety and their property.
Section 70 of the Intoxicating Liquor Act provides that Police may enter a premises in his duty, and it is therefore lawful for the Police to enter a premises that is licensed at any time to prevent or investigate the breaching of any of the provisions of this Act.
I find that the Police Officers had entered the premises in the performance of their duty as set out under the heading of section 70. ...
The first part of section 70 provides that it shall be lawful for any constable to enter any licensed premises at any time. There is no detail about the license of this bar, but I believe that Billfish Bar is a licensed premises as it has been in operation for many years now and is popular with the youth.
The second part of section 70 is that it is lawful for the Police to enter and prevent. And the question we need to ask is to prevent what? The law does not specify what is to be prevented but I am of the opinion that it is to prevent those who are in breach of the law, those who do not uphold the peace, those who cause disorder. As stated by Probation Constable Rodney Senituli they had gone on patrol to bars to ensure public safety in the bar and that there is no disorder.
At the same time, the Intoxicating Liquor Act prevents crime such as sections 59, 60, 61, 63, 64, 65, 66, 67 and 69 [sic] it the duty of Police to perform.
The word prevent is important in case there was violence at the bar which would lead to death. Under the English version, the word Ta’ofi is translated as prevention. I am of the opinion that that was the intention of the heading for section 70 that Police may enter to prevent a death from occurring. If the Police were confined to stay outside that they remain at the Police station and if violence breaks out inside by the time they get there someone would have already died. I believe that would not serve the purpose of the intention Parliament had when they made this law to protect people's lives.”
  1. After discussing the principles in Nasilai v Kingdom of Tonga [2010] TOCA 5 and Taulanga v Kama [2005] TOSC 32, referred to by the Appellant, the learned Magistrate continued:
“The third part of section 70 provides to detect the violation of any of the Act which is his rightful duty.
I am of the opinion that detecting those who violate the provisions of the Act will be better served if the Police enter a premises, in his capacity as Police, to carry out their rightful duty. And I am of the opinion that that is the response to the unlawful entry contention.
Counsel for the defence had submitted that s 123 of the Police Act in relation to a search warrant. With all due respect to counsel, that is irrelevant to the issue before the court, because the issue is the purported unlawful entry of Police into Billfish Bar.
... I therefore find that the Police lawfully entered Billfish Bar.”

The appeal

  1. On 1 June 2023, pursuant to ss 74(1) of the Magistrates Court Act, the Appellant appealed the decision to this Court. The grounds advanced are, in summary, that the Magistrate erred by:
  2. The balance of the criminal trial below has been stayed pending the outcome of this appeal.
  3. The Respondent opposes the appeal.

Appellant’s submissions

  1. Notwithstanding the breadth of his grounds of appeal, the Appellant elected to rely only on his (counsel’s, also Mr ‘Aho) submissions below. Those submissions only support the first three grounds of appeal. Mr ‘Aho did not press the remaining two. The Appellant’s submissions may be summarized, relevantly, as follows.
  2. In his affidavit, Constable Sentituli deposed that he knew he and Mafi had a right to enter any bar in the performance of their duties, but he did not say that to the Appellant at the time or what those specific duties were.
  3. The charging officer, Taukatelata Vakalahi, deposed that Police duties include patrolling and visiting bars to ensure that there are no offences committed therein.
  4. Section 70 only permits Police entry for the purpose of preventing or detecting the violation of any of the provisions of the Act which it is his duty to enforce. That power is to be contrasted with s 123 of the Tonga Police Act which permits Police to enter premises, without a warrant, for the purposes of search and seizure, only if they are satisfied, on reasonable grounds, that a serious offence has been committed, is being committed or is about to be committed in the place; and that it would be impracticable, unreasonable or not in the interests of justice to apply for a warrant in order to conduct a search in relation to the offence.
  5. The Intoxicating Liquor Act does not impose any duty on Police to check if “property and health of people is safe”.
  6. Where a person's liberty is in question, the strict requirements of the law must be observed,[2] the cardinal principal being, that what is officially done must be in accordance with the law.[3]
  7. The Appellant had the freedom to enjoy the premises of his business. If his liberty was then to be in question (which it obviously was because he was subsequently arrested), the strict requirements of the law were required to be observed, including the Police being on the premises, in performance of their legal duties, pursuant to the correct legal authority.
  8. None of the Constables referred to s 70, or any other provision, of the Act. There is nothing in the evidence which suggests they were enforcing the Act. Whether that may have been an ‘impractical consideration’ for Police officers at the time is irrelevant.
  9. What was said by them appeared to merely be portions of the functions prescribed by s 8 of the Tonga Police Act. Those ‘functions’ do not empower Police with search powers, such as those conferred by s 123 of the Tonga Police Act.
  10. As the Police had no competent legal authority to be at the Billfish, the charges that emanated from their unlawful entry are incompetent and should be set aside.

Respondent’s submissions

  1. The Respondent’s submissions may be summarized as follows.
  2. The Appellant’s grounds of appeal may be condensed to a question as to the lawfulness of the entry by the Police officers and whether s 70 empowered them to enter the Billfish.
  3. Legislation is to be interpreted by reference to its text, context and purpose: Rex v Tu’ivakano [2020] TOSC 5.[4]
  4. By its text, s 70 empowers a person to enter a place if (1) the person is a “constable”, (2) the places are a “licenced premises”, (3) the person enters “at any time”, (4) the person enters “for the purpose of preventing or detecting the violation of any of the provisions of Act”, and (5) it is the duty of the person to enforce that provision.
  5. Constables Senituli and Mafi are “constable[s]”. The Billfish Bar is a “licenced premises”. The Constables entered the Billfish “at any time”. The Constables entered the Billfish “for the purpose of preventing or detecting the violation of a provision of the Act”.
  6. A Constable may enter premises in order to prevent or detect a violation of a provision of the Act which it is his duty to enforce, regardless of whether a violation is known to exist at the time of entry.
  7. The text of s 70 authorising entry for “preventing or detecting” a violation of any of the provisions of the Act implies entry where no violation of the Act has in fact occurred. Entry to prevent a violation necessarily implies entry in order to cause a violation not to occur before it actually occurs. Entry to detect a violation contemplates entry to discover a violation that has occurred but which is not yet known to have occurred.
  8. Given the clear and unambiguous meaning of its text, the context and purpose of s 70 need not be considered.[5] Notwithstanding, the context of s 70 supports the above interpretation. The offences contemplated by the Act relate to activities occurring on licenced premises. For example, ss 64(2), which was referred to by the learned Magistrate, prohibits the possession on premises of liquor over a certain concentration. To prevent officers from entering premises until after determining the existence of such liquor on said premises would lead to an absurd interpretation which could not have been intended and which should be rejected.[6]
  9. Further, the purpose of s 70 also supports the interpretation submitted. The Act does not expressly state a purpose. However, it is clear from its provisions that its purpose is to regulate and criminalise certain activities occurring within licensed premises in order to protect the public. Therefore, an interpretation that forbids Police from entering licensed premises until a violation of the Act has actuallyoccurred would prevent them from performing their functions of preventing violations before they cause harm, and of detecting violations so that, where harm is caused, it can be punished.
  10. The Constables entered the Billfish for the purpose of preventing or detecting the violation of s 61 of the Act, also referred to by the Learned Magistrate, which makes it an offence to permit disorderly persons to remain on licensed premises.
  11. A Constable is not required to expressly state their purpose for entering licensed premises under s 61 of the Act when asked to do so by a person. The Appellant has not provided any authority to indicate otherwise.
  12. Even if a Constable is required to do so, he/she is only required to state his/her general purpose of entry, and is not required to recite specific legal authority. A requirement to recite specific legal authority would require each Constable to memorise the provisions of every Act that empowers him/her to perform their duties. Such a requirement would limit the resources to be devoted to enforcement and protection, jeopardising the ability of a Constable to achieve the purpose of the Act, namely the protection of the public from the danger associated with alcohol use. The Constables stated their general purpose of entry by stating that they entered for the purpose of “check[ing] on public safety” and “to ensure that there was no disorder within” which was sufficient.
  13. The Constitution and the Tonga Police Act need not be considered in the interpretation of s 70 of the Act because the text of the provision is clear and unambiguous when read alone. In any event, the above interpretations are not inconsistent with the Constitution or the Tonga Police Act.

Consideration

  1. For the reasons which follow, the Appellant has not demonstrated any discernible error of principle or approach by the Magistrate, the Respondent’s submissions are to be preferred, and the appeal must therefore be dismissed.
  2. First, an application of the facts revealed by the affidavits filed in the proceeding below to a plain reading of the text of s 70 supports the Magistrate’s decision that the entry by the Police was lawful. There is nothing ambiguous or uncertain about the provision. If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning: Gough Finance Ltd v Westpac Bank of Tonga [2005] Tonga LR 390 at 394. As the Respondent submitted, the Police officers were entitled, at any time, to enter the Billfish for the purpose of preventing or detecting violations of the Act which it was their duty to enforce.
  3. Second, s 70 resides (i.e. its context) in a section of Part I of the Act entitled “Offences”. It is clearly intended to form part of, and give effect to, the provisions establishing prescribed offences (or violations) of the Act. The Magistrate’s interpretation was consistent with and furthered that context.
  4. Third, the Magistrate did not apply s 8 of the Tonga Police Act as the legal basis for finding that the entry was lawful. He applied s 70 of the Act.
  5. In any event, s 8 does not of itself confer any power of entry by Police into licensed premises. It broadly prescribes the functions of Police as including, relevantly, to maintain law and order, to preserve the peace, to protect life and property, to prevent and detect crime, to uphold the laws of Tonga, and any other function conferred by the Police Act or another enactment. The Intoxicating Liquor Act is another enactment which confers specific functions on Police. The general s 8 functions are congruent to the specific functions conferred by s 70 of preventing or detecting violations of the Act.
  6. In my opinion, in light of the general functions such as ss 8(f), to uphold the laws of Tonga, which include the provisions of the Act, the final limb of s 70 – “which it is their duty to enforce” – should not be read narrowly as a reference to only those offences or other provisions in the Act which expressly refer to Police being involved. For instance:
  7. Other provisions do not expressly refer to Police being involved, or only indirectly involved, but nonetheless fall within the gamut of requirements and prohibitions within the Act which, in the ordinary course, will only be able to be prevented or detected by Police officers by entering licensed premises. For instance:
  8. Fourth, the Appellant’s submission that the officers in question did not specify to the Appellant that they were entering pursuant to s 70 seeks to read into the provision a requirement which does not exist. Plainly, s 70 does not require a Police officer, upon entering licensed premises pursuant to that section, to specify that provision (or any other which might apply) as a prerequisite to lawfully doing so. Compare, for example, s 115 of the Tonga Police Act which requires a police officer, who arrests a person without warrant, to inform the person that he is under arrest and the nature of the offence for which the person is being arrested.
  9. It will be recalled that most licensed premises or bars such as the Billfish are public houses in the sense that they are open to the public subject to any legislative constraints or contractual conditions of entry. Had Parliament intended Police officers to be required to specify which provision of the Act authorised their entry, it could easily have expressed such a requirement in the provision or elsewhere in the Act. The Court has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute: 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2019] TOSC 45.[7] Section 70 (nor the rest of the Act which does not contain any reference to Police officers having to stipulate which provision of the Act they are invoking when carrying out their various functions and powers under it) does not suffer from any of those defects.
  10. The submission also fails to appreciate that most often, and in the absence of intelligence from within the premises, it will not be until Police officers have entered licensed premises that they will be able to ascertain whether, and if so, which provision of, the Act is being or may be contravened.
  11. Further, whether Police enter licensed premises in accordance with s 70 is to be determined as an objective fact, not on the basis of any subjective statements by them as to what might be found within the premises before they’ve proceeded to examine the premises and the persons and activities within. If Police had to specify what might be going on inside licensed premises, as a specific breach of a specific provision of the Act, before being lawfully permitted to enter the premises, the purport of s 70 would be rendered unworkable and/or useless. That is not an interpretation Parliament should be presumed to have intended: Rex v Tu'ivakano [2020] TOSC 5.[8] Rather, the Court is to strive for an interpretation which will make the Act work in the manner that the Court presumes Parliament must have intended; and to avoid one which will lead to a result which is absurd in the sense that the result may be unworkable, impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief.[9] The Magistrate’s interpretation of s 70 fulfilled that task.
  12. Fifth, the Police statements to effect that they were patrolling for the protection and safety of people and property were a sufficient analogue for their express duty to prevent and detect breaches of the Act such as not permitting drunk or disorderly persons from being on licensed premises or being served more alcohol and the prohibition against supplying to those under the age of 18.
  13. Sixth, the last observation highlights the importance of the purpose of s 70. Unlike many other types of premises and commercial operations, the Act, by its preamble, regulates the sale and consumption of intoxicating liquor. By definition, premises and operations involving the supply of liquor carry with them unique risks and responsibilities. Legislative control over the liquor industry in Tonga seeks to strike a balance between the perceived social benefits of access to, and responsible enjoyment of, alcohol, on the one hand; and the potential for widespread health and other social issues from its misuse, on the other. To that end, constant vigilance and oversight of those who are licensed to supply alcohol (and prosecution of those who are not) is essential to the integrity of the industry and the protection of the community. Viewed through that prism, s 70 plays a critical role in achieving those objectives.
  14. In s 70, the word ‘prevent’ connotes that the event to be prevented has not yet occurred. The word ‘detect’ connotes that it has. Therefore, the broad power of entry conferred on Police in respect of licensed premises is designed to provide them with the ability to do both. Without that power of entry, one may rhetorically ask: how could Police prevent or detect breaches of the Act? Any suggestion that they ought to wait until they receive reliable information that a breach has been, is being or is about to be committed, along the lines of s 123 of the Police Act, fails to appreciate the practical reality that in the vast majority of cases, the only persons who will have knowledge of a breach will be those committing it. Rarely will other patrons in a licensed venue be sufficiently interested (unless the offending behaviour offends them) or motivated to inform Police about evidence of a breach. Further, the cordial presence of Police in a licensed venue can be an effective deterrent (i.e. preventative) to those contemplating a breach of the Act. That, in turn, provides a sense of security in the premises which ought to enhance the enjoyment of all present, except of course, those in breach of the Act.
  15. Seventh, the Appellant’s comparison with s 123 of the Police Act was inapposite. As noted above, the power of search and seizure without a warrant under s 123 is conditioned by requirements for Police to be satisfied, on reasonable grounds, that a serious offence (defined by s 3 of that Act to be an offence punishable by imprisonment for 3 years or more, or a fine of $2,000 or more) has been, is being committed, or is about to be, committed in any place; and it would be impracticable, unreasonable or not in the interests of justice if the officer was required to apply for a warrant in order to conduct a search in relation to the offence. No such requirements are to be found in s 70 of the Act. A better comparison is to be found in s 73 of the Act whereby upon a complaint on oath of reasonable grounds for a suspicion and belief that liquor has been sold or is being kept for the purpose of sale at unlicensed premises, a Magistrate may issue a warrant for Police to search those premises. It will be noted that there is no provision in the Act permitting a warrantless search. For that, s 123 of the Police Act could apply, such as in the case of a search of licensed premises in which there are reasonable grounds for believing that illicit drugs are being sold, a matter not expressly catered for by the Act. [10]
  16. Eighth, the Magistrate’s interpretation did not contravene clause 16 of the Constitution. Relevantly, that protection renders it unlawful for anyone to forcibly enter the house or premises of another or to search for anything or to take anything the property of another except according to law. Three observations are apparent. Firstly, there is no suggestion here that the Police entered or sought to enter the Billfish by force. Secondly, there is no suggestion that at the time they entered, they were doing so for the purpose of carrying out any search of the premises or seizure of items therein. Thirdly, by its own terms, clause 16 yields to other laws, created by the King and the Legislative Assembly pursuant to clause 56, which impinge on the issue of entry to premises without a warrant. The Act is one such law.
  17. Ninth, while the Appellant’s submission that where a person's liberty is in question, the strict requirements of the law must be observed,[11] and that what is officially done must be in accordance with the law,[12] may, as matters of general principle, be undoubted, their application to the present case was misguided.
  18. When the Police initially entered the Billfish pursuant to their broad power to do so under s 70, there was no issue, nor was there any intention on their part, of interfering with the Appellant’s liberty. It was only after his allegedly abusive challenge to them that the decision was later taken to arrest the Appellant for an alleged breach of the Criminal Offences Act.
  19. The Appellant does not identify which requirements of s 70 were not strictly observed. As noted, there are no temporal limits (“any time”), no reasonable belief prerequisite and no requirement for Police to specify that they are entering licensed premises pursuant to s 70. That is a matter of law. The reason they did state was consistent with their general statutory function of upholding the Act and their specific duty to prevent or detect violations of the Act.
  20. Apart from uncontroversial statements of principle, the decisions in Nasilai and Taulanga are distinguishable from the present case. In Nasilai, the Appellant brought an action against the Kingdom in tort for wrongful arrest, false imprisonment and malicious prosecution arising from his arrest, without warrant, following which he was locked in a police cell for a number of days without being informed of the reason for his arrest. It was in that context that the Court of Appeal stressed the need for the full requirements of s 22 of the Tonga Police Act to have been fulfilled, failing which, the appellant’s detention after the first 24 hours was declared unlawful. Similarly, Taulanga claimed (unsuccessfully) damages for false imprisonment arising out of her alleged arrests on three occasions in a week without Police telling her the reason for the arrests. The main issue there was whether the Police actions amounted to an arrest. None of the issues in those cases arise in the present.

Result

  1. The appeal is dismissed.
  2. The decision of Senior Magistrate Kaufusi dated 31 May 2023 is affirmed.



NUKU’ALOFA
M. H. Whitten KC
4 August 2023
LORD CHIEF JUSTICE

[1] Criminal Summons 221, 222 and 223 of 2023.
[2] Nasilai v Kingdom of Tonga [2010] TOCA 5.
[3] Taulanga v Kama [2005] TOSC 32.
[4] Supreme Court, CR 7 of 2019, 11 February 2020, at [17(a)].
[5] Tu’ivakano, ibid, at [17(b)].
[6] Tu’ivakano, ibid, at [17(f)].
[7] At [156] to [157], citing Sir Rupert Cross on Statutory Interpretation (3rd ed, 1995) 49. See also Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586; Sheehan v Watson [2010] NZCA 454, [2011] 1 NZLR 314; Air New Zealand LMcAlistAlister [2008] NZCA 264; [2008] 3 NZLR 794.
[8] Citing Frucor Beverages Ltd v Rio Beverages Ltd [2001] 2 NZLR 604 at [28] (CA); Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407; [2008] 2 NZLR 182 at [57]; Sheehan v Watson, supra.
[9] R v Tu’ivakano, ibid, citing Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36, (1996) 186 CLR 389; Sheehan v Watson, supra.
[10] Or ss 23 or 24 of the lllicit Drugs Control Act.
[11] Nasilai v Kingdom of Tonga [2010] TOCA 5.
[12] Taulanga v Kama [2005] TOSC 32.

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