[2000] 5 LRC 733

IN THE COURT OF APPEAL OF TONGA

FIFITA AND ANOTHER

V

FAKAFANUA

Court of Appeal
Burchett, Tompkins and Beaumount JJ
30 July, 7 August 1998

(1) Criminal procedure - Arrest - Arrest without warrant - Legality - Police powers - Power to arrest person suspected on reasonable grounds of having committed offence - Suspect arrested for questioning - Whether arrest lawful - Appropriate test - Police Act, s 21.

(2) Criminal procedure - Arrest - Detention following arrest without warrant - Legality - Police powers - Statute requiring person arrested to be brought before d magistrate 'without unnecessary delay' - Suspect arrested for questioning - Whether statute permitting detention for questioning - Police Act, s 22

(3) Appeal - Jurisdiction - Parties not challenging order of court but seeking to appeal against reasons for judgment - Whether appeal competent.

Following the arrest of the respondent without warrant and his detention at a police station, a successful application was made on his behalf to the Supreme Court for a writ of habeas corpus and he was released. With the agreement of the parties, the court had assumed that the police, suspecting that the respondent had committed an offence, had arrested him for questioning. The respondents to that application, an Assistant Chief Inspector of Police and the Minister of Police, appealed to the Court of Appeal, challenging the correctness of rulings made by the trial judge, although they did not seek to re-arrest the respondent. Several legal issues arose on the appeal: firstly, whether the arrest had been justified under s 21 of the Police Act, which authorised a police officer to arrest without warrant a person whom he suspected on reasonable grounds of having committed an offence; secondly, whether s 22 of the Act allowed an arrested suspect to be detained for questioning (s 22 required that a person arrested without warrant be brought before a magistrate to be charged 'without unnecessary delay' or, if that was not practicable within 24 hours, that a police sergeant or senior officer inquire into the case and grant or refuse bail); thirdly, whether an appeal was competent when the appellant sought to challenge only the reasons, but not the order, of the lower court.

HELD: Appeal dismissed.

(1) The appellants had failed to justify the arrest of the respondent under s 21 of the Police Act because they had not discharged the onus of providing evidence to answer affirmatively the two relevant questions. Firstly, did the arresting officer suspect that the person arrested was guilty of the offence? (The answer to this question depended entirely upon findings of fact as to the officer's state of mind.) Secondly, assuming that the officer had the necessary suspicion, were there reasonable grounds for that suspicion? (This was a purely objective requirement) (see p 737, post). Dictum of Woolf LJ in Castorina v Chief Constable of Surrey (1988, unreported; cited in Archbold, Criminal Pleading, Evidence and Practice (1993), Vol. 1, para 15 - 144) applied.

(2) Section 22 of the Police Act was enacted for the specific purpose of safeguarding the rights of a citizen and any authority given by the section to infringe individual liberty was to be construed strictly. The bringing of an arrested person before a magistrate 'without unnecessary delay' was the safeguard for the citizen provided by the legislature. The section did not authorise delay for questioning and there was no warrant for reading the provision as if it referred to the practicability of interrogation. However, that did not mean that no questions might be asked by the police about the offence: suspected: a few simple questions might resolve doubts and might even lead to the suspect's release. Nevertheless, the safeguard requiring that the arrested person be brought before a magistrate without unnecessary delay was primary and had to be fully observed. (The phrase 'without unnecessary delay' referred to the same requirement as the phrase 'as soon as practicable', which had formerly appeared in the Act: performance that was without unnecessary delay was performance that was carried out as soon as was practicable.) The provision in s 22(2) that, if it was not practicable to bring the person arrested before a magistrate within 24 hours, a responsible police officer should inquire into the case and grant or refuse bail, did not authorise detention for 24 hours (see pp 738 - 739, 741, post). Dicta of Lord Atkin in Liversidge v Atkinson [1941] 3 All ER 338 at 351, 362, Soakai v Taulua (PC No 6 of 1983, unreported), Tonga Privy Council, Kingdom of Tonga v Finau (23 June 1993, unreported), Tonga CA, R v Iorlano (1983) 151 CLR 678 and Williams v R (1986) 161 CLR 278 followed. Holgate-Mohammed v Duke [1984] 1 All ER 1054 not followed.

(3) An appeal was generally against the order of a court, not against the reasons given for that order. However, in exceptional cases a judgment itself might ground an appeal: it might contain findings, expressed as declarations, which could have serious consequences for those affected. Thus an order made on grounds shown to be insupportable could be set aside on appeal and replaced by the same order made for the right reasons (see p 742, post). Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569 and Baxter Healthcare Pty Ltd v Comptroller-General of Customs [1997] 72 FCR 467 considered. [Editors' note: Sections 21 and 22 of the Police Act, so far as material, are set out at p 736, post.]

Cases referred to in judgment
Baxter Healthcare Pty Ltd v Comptroller-General of Customs [1997] 72 FCR 467, Aus FCA Castorina v Chief Constable of Surrey (1988, unreported), cited in Archbold, Criminal Pleading, Evidence and Practice (1993), vol 1, para 15-144, UK CA
Holgate - Mohammed v Duke [1984] 1 All ER 1054, UK HL
Kingdom of Tonga v Finau (23 June 1993, unreported), Tonga CA
Liversidge v Atkinson [1941] 3 All ER 338, UK HL
Minister of Police v Moala (19 June 1997, unreported), Tonga CA
R v Iorlano (1983) 151 CLR 678, Aus HC
Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569, UK CA
Soakai v Taulua (PC No 6 of 1983, unreported), Tonga PC
Trobridge v Hardy (1955) 94 CLR 147, Aus HC
Williams v R (1986) 161 CLR 278, Aus HC

Legislation referred to in judgment
Australia
Customs Act 1901, s 212
Justices Act 1959, No. 17 (Tasmania), as amended, s 34A(1)

Tonga
Constitution of Tonga 1875, Cap 2, cl 9
Bail Act 1990
Police Act, Cap 35, ss 21, 22
Police (Amendment) Act 1990

United Kingdom
Bill of Rights 1688
Magistrates' Courts Act 1980, s43(1), (4).

Other source referred to in judgment
Royal Commission on Criminal Procedure, Report (1981), Cmnd 8092, para 3.66

Appeal
The appellants, Semisi Fonua Fifita, an Assistant Chief Inspector of Police, and William Clive Edwards, the Minister of Police, appealed against certain rulings in the judgment of Lewis CJ in the Supreme Court discharging a writ of habeas corpus and ordering the release from custody of the respondent, the Hon Noble Fakafanua. The facts are set out in the judgment of the court.

Mr Taumoepeau (Solicitor-General) for the appellants.
Mr Niu for the respondent.

7 August 1998. The following judgment of the court was delivered.

BURCHETT, TOMPKINS AND BEAUMONT JJ. This is an appeal by the first appellant, an Assistant Chief Inspector of Police, and the second appellant, the Minister of Police, who were the respondents to an application for the issue of a writ of habeas corpus made on behalf of Noble Fakafanua following his having been arrested without warrant and detained at a police station. As a result of the habeas corpus proceeding, Noble Fakafanua, now the respondent to this appeal, was set at liberty, and the writ was discharged. The appellant does not seek to re - arrest the respondent, whose committal hearing is pending, but challenges the correctness of certain rulings made by the trial judge in the course of dealing with the matter, and says the respondent should not have been released.

In Tonga, the availability of the writ of habeas corpus is assured by a constitutional guarantee: see Constitution, cl 9. The nature and incidents of this right are to be ascertained from the great cases by which they were established in the common law: see Minister of Police v Moala (19 June 1997, unreported), Tonga CA at 19-20 per Marling, Burchett and Tompkins JJ. In Liversidge v Anderson [1941] 3 All ER 338 at 362, Lord Atkin (whose dissenting judgment has since been generally recognised to be a masterly statement of the law) referred, as 'one of the pillars of liberty' to the principle 'that in English law every imprisonment is prima facie unlawful, and that it is for a person directing imprisonment to justify his act'.

In the case of arrest by a police officer without warrant, what is required by the obligation to justify the act of interference with the individual's liberty? In the same judgment of Lord Atkin (at 351) the answer given by the common law is explained:

'The power of arrest is confided by the common law both to constables and to private individuals. The constable has power within his district to arrest a person on reasonable suspicion of his having committed a felony ... In these cases, the grounds for suspicion must be brought before the court. The onus is on the person who arrested to prove the reasonable grounds, and the issue of whether or not the cause is reasonable is to be determined by the judge.'

The legislature of Tonga has codified the police officer's power of arrest without warrant in ss 21 and 22 of the Police Act, but these sections have not affected the onus of proof stated by Lord Atkin. It remains necessary under s 21 for a police officer justifying such an arrest to show that he suspected the person arrested of having committed a crime and that he had in fact reasonable grounds for this suspicion. The relevant provision in s 21 reads:

'Any police officer ... may arrest without warrant - (a) any person whom he suspects on reasonable grounds of having committed a crime.'

In addition, s 22 provides:

'(1) A police officer making an arrest without warrant shall, without unnecessary delay and subject to any provisions under any Act as to bail or recognizance, take or send the person arrested before a magistrate there to be charged or before a police officer of the rank of sergeant or above or before the police officer in charge of the police station.

(2) If it is not practicable to bring the person arrested before a magistrate having jurisdiction within 24 hours after he has been so taken into custody, the police officer of the rank of sergeant or above or the police officer in charge of the police station shall inquire into the case and shall grant or withhold bail in accordance with the Bail Act 1990.' (Our emphasis.)

Several questions were raised by the habeas corpus proceedings. Although the debate concentrated largely upon s 22, an important provision upon which it will be necessary for us to comment, logically the first question is whether the appellants justified the arrest under s 21. As to this, the respondent's counsel relied on his own affidavit to show that his client was not arrested on reasonable grounds of suspicion of having committed a crime, but simply because the police wished to interrogate him. The appellants relied on an affidavit of the arresting officer, Inspector Hia, which did not in terms allege he held any suspicion, and an affidavit of the appellant Fifita, who interviewed the respondent at the police station.

Neither affidavit brought the grounds of any suspicion before the court, to adopt the language of Lord Atkin. There was nothing to discharge the onus of proving reasonable grounds, or to show what grounds might have existed. But, at the hearing before Lewis CJ in the Supreme Court, the parties agreed to ask the court 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 the 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.'

It will be apparent that the assumed facts assert, in very general terms, the existence of a suspicion, but bring before the court no basis for that suspicion. Accordingly, the onus borne by the appellants was not discharged. That onus required evidence to be provided, failing appropriate admissions, to answer affirmatively the two questions which were stated by Woolf LJ in Castorina v Chief Constable of Surrey (1988, unreported) (referred to in Archbold Criminal Pleading Evidence and Practice (1993) vol 1 para 15 - 144):

'(1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(2) Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.'

Accordingly, the decision to release the respondent was correct.

But the learned Chief Justice did not simply set the respondent free on the ground that the police had failed to justify his arrest without warrant under s 21. Rather, his Honour considered the effect that s 22 might have had, once the arrest was made. Of this section, he said that it was not intended-

' 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.'

He stated a series of propositions centring upon his view that, although a person arrested under s 21 may be held (in the circumstances indicated in s 22) for a period of up to 24 hours, this should be 'without being questioned about the substantive offence until the magistrate is available'.

Section 22 (1) requires that, 'without unnecessary delay', a person arrested be taken before a magistrate or one of the police officers described. In Soakai v Taulua (PC No 6 of 1983, unreported), Tonga PC, it was held:

'Subsection (2) [of s 22] is a conditional provision. It comes into operation "if it is not practicable to bring the person arrested before a magistrate having jurisdiction within 24 hours". If that condition is fulfilled a duty arises for the bringing of the arrested person before a designated police officer so a decision may be made which, of course, is of the same nature as that which a magistrate would perform. This does not mean a person can be held for 24 hours. As soon as it appears that no magistrate will be available as a practicable procedure sub - s (2) will apply ... The scheme of s 22 then is that, if a magistrate is available, the arrested person is to be taken before him without unnecessary delay, but, if that is not a practicable step which can be taken within a period of 24 hours, then the arrested person must be taken before a designated officer who must perform what might be called the functions of a magistrate.'

The same view was taken in Kingdom of Tonga v Finau (23 June 1993, unreported), Tonga CA, per Roper, Ryan and Morling JJ where their Honours said:

'In our opinion this was not a case where the police officer had the jurisdiction to inquire into the case and release. The authority given an officer by s 22(2) is circumscribed by the opening words of the subsection…'

As was pointed out in Soakai v Tozilua the authority conferred on a designated police officer by s 22(2) cannot be augmented by reference to s 22(1), because that subsection says nothing about what he can do; in mentioning such an officer, it merely makes an anticipatory reference to the provision in sub-s (2). Although s 22(2) was repealed and replaced by the Police (Amendment) Act 1990, the form of the new provision leaves this reasoning unimpaired.

The key question relates to the meaning of the expression 'without: unnecessary delay'. When s 22 was first enacted, sub-s (2) included the reiteration 'but where a person is kept in custody he shall be brought before a magistrate's court as soon as practicable'. Although these words have since been repealed, they cast light on the meaning intended to be conveyed by the expression 'without unnecessary delay', upon compliance with which they were plainly intended to insist. They also continue to be reflected in the opening words of sub-s (2). Thus it is apparent that the two expressions refer to the same requirement. Performance that is without unnecessary delay is performance that is carried out as soon as practicable. This means that the provision in the Tongan Police Act may be regarded as equivalent to the provision that was considered by the English House of Lords in Holgate-Mohammed v Duke [1984] 1 All ER 1054 where, as appears from the speech of Lord Diplock (at 1059), the relevant requirement was that the suspect arrested and detained in custody 'must be brought before a magistrates' court as soon as practicable'.

The statutory requirement to bring the arrested person before a magistrate 'without unnecessary delay' or 'as soon as practicable' may involve, perhaps, some softening of the common law, by which, as Lord Atkin said in Liversidge v Anderson [1941] 3 All ER 338 at 360, the arrested person 'must at once be brought before a judicial tribunal' (our emphasis). In England the similar legislation mentioned has been said to represent a compromise the effect of which was stated as follows by Lord Diplock in Holgate-Mohammed v Duke [1984] 1 All ER 1054 at 1059:

'My Lords, there is inevitably the potentiality of conflict between the public interest in preserving the liberty of the individual and the public interest in the detection of crime and the bringing to justice of those who commit it. The members of the organised police forces of the country have, since the mid - nineteenth century, been charged with the duty of taking the first steps to promote the latter public interest by inquiring into suspected offences with a view to identifying the perpetrators of them and of obtaining sufficient evidence admissible in a court of law against the persons they suspect of being the perpetrators as would justify charging them with the relevant offence before a magistrates' court with a view to their committal for trial for it. The compromise which English common and statutory law has evolved for the accommodation of the two rival public interests while these first steps are being taken by the police is twofold. (1) No person may be arrested without warrant (ie without the intervention of a judicial process) unless the constable arresting him has reasonable cause to suspect him to be guilty of an arrestable offence; and arrest, as is emphasised in the judges' Rules themselves, is the only means by which a person can be compelled against his will to come to or remain in any police station. (2) A suspect so arrested and detained in custody must be brought before a magistrates' court as soon as practicable, generally within 24 hours, otherwise, save in a serious case, he must be released on bail (see s 43(1) and (4) of the Magistrates' Courts Act 1980). That arrest for the purpose of using the period of detention to dispel or confirm the reasonable suspicion by questioning the suspect or seeking further evidence with his assistance was said by the Royal Commission on Criminal Procedure in England and Wales (Cmnd 8092) in 1981, at para .3.66 "to be well established as one of the primary purposes of detention upon arrest".'

Of course, since the legislature of Tonga has enacted legislation on the matter, the question is not what the law permits elsewhere, but what the Tongan statute means. Decisions in England, Australia, New Zealand and, indeed, other countries, may assist the court in the task of interpreting the Police Act. In Australia the High Court, since the decision of the House of Lords in Holgate-Mohammed v Duke [1984] 1 All ER 1054, has reviewed in detail the case law and legislation in this area. That was in Williams v R (1986) 161 CLR 278, which was concerned with the effect of two Tasmanian sections, one of which required a person arrested to 'be brought before a justice as soon as is practicable after he has been taken into custody', and the other of which required such a person to be taken 'before a justice without delay, to be dealt with according to law'. Gibbs CJ said of these provisions (at 283) that they are 'not inconsistent'; that they 'require the person making the arrest to bring the arrested person before a justice in as short a time as is reasonably practicable' and that this is 'in effect ... the same as the common law rule'. Mason and Brennan JJ, in a joint judgment, referred to an earlier case, R v Iorlano (1933) 151 CLR 678, where a similar section (s 212 of the Customs Act 1901, which used the expression 'without undue delay') was construed in a joint judgment of Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ. In the earlier case their Honours had said ((1933) 151 CLR 678 at 680):

'There is simply nothing in the provisions of [the section], or in the context in which [it] appears, that suggests that the fact that the arresting officer desires to question the arrested person affords any legitimate reason for delay in taking him before a justice. The section gives no power to question an arrested person, and does not make justifiable a delay which resulted only from the fact that the arresting officer wished to engage in questioning.'

Mason and Brennan JJ in Williams v R (1986) 161 CLR 278 at 292 commented:

'The court's statement of the principle does not depend on the particular language of s 212 of the Customs Act nor on the particular character of the officer who might be exercising the power to detain the person arrested. The principle is of general application to all statutory powers to detain a person after arrest for an offence although it can, of course, be excluded by statute. The right to personal liberty is, as Fullagar J described it, "the most elementary and important of all common law rights": Trobridge v Hardy (1955) 94 CLR 147 at 152.'

Their Honours also said of the words 'as soon as practicable' (at 297):

'Those words are not intended to deny the operation of a principle which protects the liberty of the subject, and to construe those words as authorizing detention for interrogation and investigation runs counter to the rule that any statute which authorizes the detention of a person must be strictly construed ...'

They declined to apply Holgate-Mohammed v Duke [1984] 1 All ER 1054 to the Australian sections.

Similarly, Wilson and Dawson JJ, also in a joint judgment, construed the Australian sections by reference to the common law rather than the interpretation that had been given to the English legislation. They said ((1986) 161 CLR 278 at 304):

'This case turns upon what is meant by the words "as soon as is practicable". That question, although ultimately one of statutory construction, must necessarily be considered against the background of the common law which provides in this instance the spirit if not the letter of the law. The presumption which requires clear words to override fundamental common law principles has an obvious application in a matter as basic as the liberty of the person ...'

They pointed out (at 306):

'It is by writ of habeas corpus that the immediate restoration to freedom of a person illegally detained may be achieved. That is a remedy as old as the law and was declared by the Bill of Rights 1688 to be so. We know of no authority whereby the writ may be refused upon the basis that a person, having been arrested, is required for further questioning. The imprisonment of a person can be justified only by lawful warrant or in the limited circumstances where he is held under lawful arrest for the purpose of obtaining the warrant of a justice for any further detention.'

They reached the conclusion (at 313):

'As we have said, ultimately this case turns upon the proper construction of the words "as soon as is practicable" in s 34A(1) of the Tasmanian Justices Act. Those words must be given a construction which, so far as is possible, is in accordance with the common law and it cannot be suggested that there is any difficulty in doing so. The common law requires an arrested person to be taken before a justice as soon as is reasonably possible and the words "as soon as is practicable" should be taken to mean the same thing. Neither the common law nor the statute permits delay merely for the purpose of further investigation either of the offence for which the person was arrested or of any other offence or offences. What is reasonable will depend upon all the circumstances, including the availability of a justice, but it does not encompass delay of that kind.'

The fact that s 22 of the Police Act of Tonga was enacted for the specific purpose, as the Privy Council pointed out in Soakai, of 'safeguarding the rights of a citizen' lends weight to the consideration urged in the High Court of Australia that any authority given by this law to infringe individual liberty should be construed strictly. What s 22 insists must be done 'without unnecessary delay' is not the interrogation of an arrested suspect, but his taking before a magistrate. There is no warrant for reading the provision as if it referred to the practicability of interrogation. Delay caused by a desire to ask questions is not authorised by the section; indeed, the bringing of the person arrested before a magistrate as soon as practicable is the safeguard for the citizen the legislature has chosen to provide.

In our opinion, it is not right to say that no questions may be asked by police a about the offence of which an arrested person is suspected. A few simple questions may resolve some doubt, and even lead to the immediate release of the suspect. But the safeguard requiring that the arrested person be brought before a magistrate without unnecessary delay is primary and must be fully observed.

Before parting with the case, we should add some remarks about the question it raised concerning the right of appeal. The appellants conceded their purpose was to have this court correct some aspects of the judgment below, but not to obtain any other relief. Generally, an appeal is against the order of a court, not the reasons given for that order. However, there are exceptional cases where a judgment itself may ground an appeal. It may contain findings that might have been expressed as declarations which could have serious consequences for those affected. In some such cases, an appeal has been held to lie. For example, in Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569 an order made on the ground of dishonesty was insupportable on that ground, but correct in all the circumstances, nevertheless. The Court of Appeal allowed an appeal because of the significance of the error in the reasons, describing the matter as 'unusual'. It expressed its decision formally by setting aside the judge's order and then making effectively the same order for the right reasons. This case was cited recently in the Federal Court of Australia in Baxter Healthcare Pty Ltd v Comptroller-General of Customs [1997] 72 FCR 467 at 483, where the relevant authorities are collected.

However, in the present case, for the foregoing reasons, the appeal should simply be dismissed with costs.