Faisauvale v Attorney General [2019] WSCA 8 (19 September 2019)

IN THE SUPREME COURT OF SAMOA
Faisauvale & Anor v Attorney General [2019] WSCA 8

Case name:	Faisauvale & Anor v Attorney General
Citation:	[2019] WSCA 8
Decision date:	19 September 2019
Parties:	TAGALOASA FILIPAINA FAISAUVALE and OVALENI POLI PALAU VAILI (Appellants) AND ATTORNEY GENERAL (Respondent)
Hearing date(s):	11 September 2019
File number(s):	CA23/19
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Harrison Honourable Justice Clarke
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	None of the grounds advanced on behalf of the appellants succeeds. The appeal is dismissed.
Representation:	J Fuimaono-Sapolu and I Sapolu for Appellants S Ainuu and V Leilua for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Constitution of the Independent State of Samoa Article; Police Service Act 2009, s. 16(2)(d); Prisons and Corrections Act 2013 ss. 3(b); 3(f); 21; 25(4)(a)-(d); 33
Cases cited:	Reekie v Attorney-General & Ors [2012] NZHC 1867 Taunoa v Attorney-General [2007] NZSC 70
Summary of decision:

CA 23/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

TAGALOASA FILIPAINA FAISAUVALE and OVALENI POLI PALAU VAILI
Appellants

AND

ATTORNEY GENERAL
Respondent

Court: Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke

Hearing: 11 September 2019

Counsel: J Fuimaono-Sapolu and I Sapolu for Appellants
S Ainuu and V Leilua for Respondent

Judgment: 19 September 2019

JUDGMENT OF THE COURT

Introduction

1. The appellants are serving prisoners. They were moved from Tafaigata Prison to the Apia Police Station. They did not like it there. They wanted to go back to Tafaigata Prison. They issued court proceedings to that end. The proceedings were dismissed by the Supreme Court. They now appeal against that decision.

Factual background

2. The appellants were serving sentences of imprisonment at Tafaigata Prison.
3. In February 2018 the Commissioner of Prisons received confidential information about the appellants. The information was that they were responsible for smuggling narcotics and arms into the prison and that they were planning a mass prison break using arms to help in their escape.
4. The Commissioner was worried that the cells at Tafaigata Prison were not secure enough to prevent the appellants from escaping. The cells at Apia Police Station were much more secure. The Commissioner decided that the solution was to move the appellants to the Apia Police Station. The appellants were taken there on 9 February 2018. They have been there ever since.
5. On 3 May 2018, the Apia Police Station was declared a prison by Order of the Minister of Prisons. The Order purported to apply retrospectively from 1 January 2015. That was the commencement date of the Prisons and Corrections Act 2013(“PCA”). If valid, the retrospective effect of the Minister’s Order would take its operation back to a time before the appellants’ arrival there on 9 February 2018.

Proceedings in the Supreme Court

6. The appellants issued proceedings in the Supreme Court. In their Amended Notice of Motion they sought orders:
   • (a) “Declaring that the act of continuous detention by the Police Commissioner of the Applicants at the Apia Police is unlawful under section 16(2)(d) of the Police Service Act 2009;
   • (b) Declaring that both the Commissioners of Police and Prisons were negligent at performing their duties at law;
   • (c) Declaring that both the Respondent and its Counsel have contributed to negligent act by both the Commissioners and the Minister of Police thereby liable under tort law;
   • (d) Declaring the decision dated 1 March 2018 by Justice Nelson relating to a strike out motion by the Respondent is tenable and relevant to this proceeding; and
   • (e) Ordering the release and the transfer of the Applicants from the holding cells at Apia Police Station to Tafaigata prison to be effective forthwith.”

Supreme Court judgment

7. The Supreme Court Judge held as follows:
   • (a) The Supreme Court has jurisdiction to declare whether detention of prisoners in a particular place is lawful or unlawful.
   • (b) The Supreme Court also has jurisdiction under art 4 of the Constitution to declare that prison conditions breach fundamental rights under the Constitution and in that event, to grant an appropriate remedy.
   • (c) The appellants’ detention at Apia Police Station was lawful as it had been declared a ‘prison’ in accordance with the PCA on 3 May 2018 and its retrospective application was not unlawful.
   • (d) Moving the appellants to the Apia Police Station was not done for disciplinary reasons and for that reason there was no breach of the procedural requirements that would have been appropriate for disciplinary procedures.
8. Having noted the appellants’ complaints, and personally inspecting the police cells, the Judge concluded that there was no breach of Article 7 of the Constitution. Article 7 provides that “No person shall be subjected to torture or to inhuman or to degrading treatment or punishment.” She also concluded that there was no unlawfulness in the detention and dismissed the appellants’ claims.
9. The Judge then went on to make a number of observations:
   • (a) She had heard no evidence that s 21 of the PCA was being complied with at the Police Station. Section 21 required three monthly reports from visiting medical officers to inspect and advise on listed topics.
   • (b) She had heard no evidence that the Commissioner had appointed for the Police Station a pastor or church Minister to meet with individual prisoners or groups of prisoners, provide religious books and texts to prisoners, conduct religious ceremonies and observances, and provide appropriate support and advice to prisoners (s 25(4) (a)-(d) PCA).
   • (c) Pursuant to section 33 PCA, all prisoners were to be provided with basic food rations, and rations provided had to reflect dietary habits of certain prisoners without favoured treatment. The first-named appellant had given evidence that he did not eat chicken as it made him physically unwell. The Judge thought that some thought ought to be given to an appropriate diet for the first named appellant if it was indeed a physical condition that caused him not to eat chicken.
   • (d) The Commissioner of Prisons and Corrections authorities were encouraged to reassess the viability of taking the appellants to the new prison once completed with more secure cells.

The Appeal

10. In this Court Ms Sapolu advanced a number of overlapping grounds of appeal which have not been easy to unravel. We use her headings as follows.

“Ground 1: Error in assessing the PCA 2013 regarding ‘penalty’”

11. The appellants argued that they were removed from Tafaigata Prison without the natural justice procedures that would have been required if they were being punished for misconduct.
12. The Commissioner’s sworn evidence was that the removal of the appellants to the Police Station was inspired by security concerns, not a desire to discipline the appellants for their behaviour. The Judge was entitled to accept that evidence. This ground fails.

“Ground 2: Error in law in assessing conditions of detainment, leading to inhuman or degrading treatment or punishment.”

13. At various points throughout her submissions Ms. Sapolu referred to legal sources all of which seem to us to fall under the above heading. The sources were:
    • (a) Article 7 of the Constitution which provides that “No person shall be subjected to torture or to inhuman or degrading treatment or punishment.”
    • (b) Section 3(b) of the PCA which requires those working with prisoners to ensure that full regard is had to the recognised international standards and obligations relating to the treatment of prisoners.
    • (c) Section 3(f) of the PCA which requires those working with prisoners to encourage growth in their self-respect and a sense of personal responsibility so as to re-build their morale.
    • (d) Two New Zealand cases Reekie v Attorney-General & Ors [2012] NZHC 1867 and Taunoa v Attorney-General [2007] NZSC 70 which illustrate unacceptable conditions amounting to cruel, degrading and disproportionately severe treatment.
    • (e) Article 10(1) of the International Convention on Civil and Political Rights 1966 (“ICCPR”) which states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” and other international instruments to similar effect.
14. What those sources have in common is the requirement that prisoners be treated with respect and without inhuman or degrading treatment. Of course it is inherent in incarceration that there will be some curtailment of the opportunities, amenities and comforts enjoyed by ordinary citizens. The question is whether the curtailment in a particular case goes so far as to amount to inhuman or degrading treatment. This must ultimately be a question of degree.
15. The point at which curtailment crosses the line into unacceptability is illustrated by Tanoa and Reekie, above. In Taunoa (supra), there were 28 restrictions in the Behaviour Management Regime programme to which prisoners were subjected. At their most extreme these included extensive solitary confinement, confinement to a cell for all but an hour a day, no opportunity for exercise in a yard, no use of personal clothes, no retention of toiletries, no television or hobbies, severe limitations on access to books, no personal radios or stereos, no access to distance education programmes, no wrist watches, limited toilet paper, no movement without three prison officers and no adequate explanation as to why they were under that regime.
    
16. In Reekie, the conditions of confinement included the restraining of ankles on a tie-down bed for four months; holding in isolation cells without windows for four months; denying recreation time for four months; and routine strip-searching without revisiting its necessity for over a year.
17. The curtailment of amenities seen in Tanoa and Reekie can be usefully compared with the conditions applying to the appellants in the present case. The appellants’ complaints, followed by the respondent’s response in each case, were as follows:
    • (a) No access to television – but never requested.
    • (b) No access to musical instruments - but never requested
    • (c) Food not to their liking - the only problem was that they did not like the food provided, not that it made them ill. Their family brought food for them during visits.
    • (d) No access to lawyer - the appellants were allowed to call their lawyer upon request and their lawyer was allowed to visit and meet with them.
    • (e) No church attendance - but never requested.
    • (f) No exercise, Zumba - but never requested. Their cells had enough space for work-outs such as sit ups or push-ups. In addition, they had one hour every day to walk from their cell to the waiting area where the Police car park is located.
18. The Judge noted that these complaints arose for the first time in the Court proceedings – the appellants had not previously asked prison authorities or the Police to address the conditions complained of. The Judge personally inspected the holding cells in question. She found that they were well lit and air conditioned. She did not find “that being housed in these cells amount[ed] to inhuman or degrading treatment”.
19. We accept that lack of complaint by a prisoner is not necessarily conclusive. Prisoners may feel that it would be pointless or dangerous to protest. However, lack of complaint is a relevant factor. Secondly, the listed complaints do not sound inhuman or degrading on their face. Thirdly the trial Judge personally inspected the premises and approved them. We see no reason to interfere with her conclusion that there was no inhuman or degrading treatment.

“Ground 3: Mistake in law in assessing detainment in respect of statutory obligations owed under PCA 2013”

20. This ground appeared to be derived from the Judge’s obiter dicta that she had not received from prison authorities evidence that they had complied with certain statutory obligations associated with designated prisons.
21. The Judge pointed out that if the Police Station qualified as a prison by virtue of the Minister’s Order to that effect, a number of obligations would stem from the PCA. These included visiting medical officers who had inspected and advised on food, hygiene, cleanliness, availability of adequate clean water, sanitation, lighting and ventilation, and suitability and cleanliness of the prisoners, clothing and bedding ((s 21(2) of the PCA). Section 25 also gave the Commissioner the power to appoint a Pastor or Church minister to provide appropriate support and advice to prisoners. The Judge drew these matters to the attention of the Prison Authorities.
22. Ms. Sapolu sought to elevate the Judge’s remarks to a ground for appealing against the refusal of the declarations and orders she had sought in the Supreme Court. But no relief had been sought in relation to the matters dealt with in the Judge’s comments. Nor did the Judge make a finding that those obligations had not been complied with. All she said was that she had not received evidence from Prison Authorities in respect of them.

“Ground 4: Mistake in law - International obligations”

23. We have already discussed the role of international obligations in the context of Ground 2 and inhuman or degrading treatment.

Conclusions

24. None of the grounds advanced on behalf of the appellants succeeds. The appeal is dismissed.
25. We will invite oral submissions from counsel on the subject of costs.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE