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

CR 83 of 2017

BETWEEN:		         REX
 
  	 	Prosecution 

AND 	:		   SIAOSI HELU
 			Accused

BEFORE LORD CHIEF JUSTICE PAULSEN 

Hearing	:		7 August 2018. 
Date of Ruling:	    	8 August 2018.

Counsel	:	Mr. ‘I Finau and Mr. Fifita for the Prosecution 
Mr. D Corbett for the accused

RULING ON ADMISSIBILITY OF EVIDENCE
The issues
[1]	Mr Helu is to stand trial by jury on one count of possession of an illicit drug contrary to s. 4(a) and (b)(iii) of the Illicit Drugs Control Act.  
[2]	He seeks a ruling excluding certain evidence that the Prosecution intends to call at his trial; specifically:
[2.1]	Evidence of a search conducted pursuant to a search warrant at the residence owned by his father on 22 April 2017 during which Mr. Helu was found to be in possession of cannabis plant; and 
[2.2]	A record of interview, voluntary confession statement and written statement of charges form all given or signed by Mr. Helu when interviewed by the Police on 23 April 2017 in which he confessed to being in possession of the cannabis without lawful justification and to the offence with which he is charged.
[3]	In relation to his application Mr. Helu argues:
(a)	That the Police failed to advise the owner or occupiers of the residence of the fact of the search warrant and its contents before entering the premises; and 
(b)	His statements were involuntary because he was fearful of being handcuffed and injured by the Police, he was fed up with being asked the same questions repeatedly and he was told that if he made a statement he would be released.
[4]	This ruling has been prepared under time pressure as Mr. Helu’s trial is scheduled to commence tomorrow.  I apologise if for that reason it is not crafted as well as might otherwise have been the case.  I also apologise for the typographical errors which may have gone unnoticed. 
The evidence
[5]	There prosecution called two witnesses.  Those witnesses were Sgt Sateki Tu’utafaiva (Sgt Tu’utafaiva) and Private Kalosi Tapueluelu (Pte Tapueluelu).  
[6]	Mr. Helu gave evidence as did his mother, Mrs. Tiutisia Helu (Mrs. Helu).  
[7]	It was a notable feature of this case that there were significant differences in the recall of all the witnesses at least in relation to the manner in which the search warrant was executed.  
[8]	It is not in dispute that on 21 April 2017 on the application of Sgt Tu’utafaiva a Magistrate issued a search warrant authorising the Police to undertake a search of the dwellinghouse of Mr. Helu’s father, Tali’auli Helu (Tali’auli) at Fasi for illicit drugs, namely marijuana.  
[9]	There is no challenge to the issue of the search warrant.
[10]	It is also not in dispute, that the Police searched Tali’auli’s residence commencing at around 7.15am in the morning of 22 April 2017 and at that time the residence was occupied by Tali’auli, Mrs. Helu and Mr. Helu.
	The evidence 
	Pte Tapueluelu’s recall of events
[11]	The first witness was Pte Tapueluelu.  He gave evidence that on 22 April 2017 he was among the Police officers who took part in the search of Tali’auli’s residence.  
[12]	He said that the search was led by Sgt Tu’utafaiva and that on arrival they went to the front of the residence and found Mrs. Helu to be awake and that Sgt Tu’utafaiva spoke to her and told her that they were there to conduct work (he could not recall if the word search was used) and that she allowed them to enter the house.  He said that Tali’auli was in the house during the search that followed.  
[13]	Pte Tapueluelu said that they went to Mr. Helu’s bedroom where he was sleeping and when they woke him up he was disturbed and tried to attack Sgt Tu’utafaiva and had to be restrained and handcuffed but Mr. Helu suffered no injuries.  
[14]	He said that both Mr. Helu and Mrs. Helu were being difficult and after Mr. Helu was restrained he was taken out of the bedroom and the search warrant was read to them both.  Mrs. Helu was said to have been given the search warrant to read but claimed it was not a search warrant.  
[15]	A search was conducted and Pte Tapueluelu found cannabis in a drawer in the bedroom in which Mr. Helu had been sleeping.  Mr. Helu was then arrested.  
[16]	Pte Tapueluelu could not recall when the handcuffs were removed but thought it was probably before leaving to take Mr. Helu to the Police Station.
[17]	Pte Tapueluelu also gave evidence that he was present the next day when A/Sgt Feki interviewed Mr. Helu and took a written statement from him.  He produced the record of interview, the written statement of charges form, and a voluntary confession statement.  
[18]	Pte Tapueluelu said that the accused was rested and healthy when interviewed, that he acknowledged he was healthy, that he never complained about any injuries and that he was not threatened or offered any inducements to make a statement and that his statement was entirely voluntary.  
	Sgt Tu’utafaiva’s recall of events 
[19]	Sgt Tu’utafaiva gave evidence of having obtained the search warrant as a result of information received from an informant.  
[20]	Sgt Tu’utafaiva said that Tali’auli is his uncle but he never explained why it was considered appropriate for him to conduct a search of his uncle’s house or to be conducting an investigation into his cousin, Mr. Helu.
[21]	He said that on the day of the search two Police vehicles went to Tali’auli’s residence.  There was seven to ten Police Officers involved.  His vehicle drove on to the property.  The other vehicle parked outside and those Officers secured the perimeter.  
[22]	He said that he saw Tali’auli sitting at the back of the house and he approached him and told him that they were there to execute a search warrant and showed it to him.  Tali’auli is said to have consented to the search and told Sgt Tu’utafaiva where Mr. Helu was sleeping.  
[23]	Sgt Tu’utafaiva said that Mrs. Helu was present and he talked to her on the way through and he told her to be calm.  When asked if he explained the search warrant to Mrs. Helu he said that Tali’auli explained it to her.
[24]	Sgt Tu’utafaiva and other Officers then went into the bedroom where Mr. Helu was sleeping and when he awoke Sgt Tu’utafaiva said he told him that they were there to execute a search warrant to find cannabis and he should get up.  Mr. Helu was not happy and told the Police Officers to get out of the house and read the search warrant from there.  Mr. Helu then lunged at Sgt Tu’utafaiva.  He was restrained and handcuffed.  
[25]	Upon hearing the noise from the bedroom Mrs. Helu is said to have become unhappy and she yelled at the Police Officers and asked why they were there.  Sgt Tu’utafaiva said he told her that they were there to execute a search warrant.
[26]	Mr. Helu was then taken out of the bedroom and the search warrant was read to him and Mrs. Helu and they both signed the back of the search warrant acknowledging this.  
[27]	The search was then conducted and the cannabis was discovered in Mr. Helu’s bedroom.  
[28]	Sgt Tu’utafaiva denied that Mr. Helu had been injured.  He said no complaint was received about an injury.  He also said that the handcuffs were removed after the cannabis was found as Mr. Helu had calmed down and said he would not be difficult.
[29]	Sgt Tu’utafaiva acknowledged that he had been inside the house on previous occasions and was familiar with it.
	Mr. Helu’s recall of events
[30]	Mr. Helu said that he was at his father’s house only because he had been out drinking and that he lives at Ma’ufanga.  
[31]	When he awoke on 22 April 2017 the Police were already there and he heard Mrs. Helu asking the Police why they had entered the house. 
[32]	He said that five Police Officers then entered his bedroom and he told them to get out of the house and read the search warrant from outside.  He then tried to get out of bed but one of the Officers tackled him and they handcuffed him and Sgt Tu’utafaiva strangled him with all his force.  He denied that he was being difficult. 
[33]	Mr. Helu said that the handcuffs were put on very tight and he asked that they be loosened five times.  They cut into his right wrist and he showed a scar that he said resulted from the incident.   He also said that the handcuffs were not taken off at the house but kept on until he was put into a cell at the Police Station.
[34]	A search was conducted of the bedroom but the room is not his.  Mr. Helu said that he admitted the cannabis was his when it was discovered only because he wanted the Police to remove the handcuffs.  
[35]	He said it was only once the search was finished that he was taken out of the bedroom and the search warrant was read to him.  
[36]	Mr. Helu admitted that the record of interview was his statement but he said that it was not voluntary.  He said that when he was questioned he told A/Sgt Feki that he would only speak in Court but he kept asking the same questions over and over so he made a statement.  He also said that he also was afraid that he might get handcuffed again and A/Feki had told him that if he made a statement he would be released. 
[37]	Mr. Helu acknowledged that he never told A/Feki that he was afraid or that he was injured nor did he tell the Magistrate when he was brought before the Court that he had been injured by the Police.  He said he told the Magistrate that he was not satisfied with the Police’s work.
	Mrs. Helu’s recall of events
[38]	Mrs. Helu said that she awoke with her husband around 5.15am on 22 April 2017 and after saying prayers they went into the kitchen and had a cup of tea.  
[39]	It was already light when Sgt Tu’utafaiva and two Police Officers entered the kitchen where she and her husband were sitting and said nothing but went straight to the living room and then to the front door.  Sgt Tu’utafaiva opened the front door and let other Police Officers enter the house.  
[40]	Mrs. Helu went after Sgt Tu’utafaiva and asked him what he was doing.  Tali’auli did not follow her.  Sgt Tu’utafaiva initially did not answer but when she asked again he said that they were there to search the house.  Mrs. Helu said he never showed her the search warrant.  When it was put to her that Sgt Tu’utafaiva had permission from Tali’auli to enter the house she said that was a lie.
[41]	By this stage Police Officers were in Mr. Helu’s bedroom and one of the Police Officers had tackled him.  When she went into the bedroom a Police Officer told her to get out or she would be put in prison and chased her out of the room. 
[42]	She said that Mr. Helu was then handcuffed and that the handcuffs remained on him as he was taken out of the house by the Police.  
[43]	When asked why Tali’auli did not follow her and object to the Police coming into the house she said she had asked him and he had said that she had done enough.  But later she said that Tali’auli had had a leg amputated and high blood pressure.  She denied that Tali’auli had not followed her because Sgt Tu’utafaiva had read out the search warrant to him.  
[44]	She said that Sgt Tu’utafaiva remained in the living room while the search was carried out and she never noticed him go into the bedroom.  Sgt Tu’utafaiva and Mr. Helu had only met in the hallway as the Police were bringing Mr. Helu out of the bedroom. 
[45]	Mrs. Helu denied that the search warrant had been read out to her and she said that none of the signatures on the back of the search warrant were hers.  
	The submissions 
	The search warrant
[46]	Mr. Corbett argued that the Police must read out a search warrant before conducting a search.  He relied upon R v Bowe [2003] Tonga LR 24; R v Motuliki [2002] Tonga LR 124 and Edwards v Moala [1999] TOSC 52.  
[47]	Mr. Corbett submitted that the search warrant was not disclosed or read to Tali’auli when the Police entered the house.  He relied on the conflicts in the evidence of Pte Tapueluelu and Sgt Tu’utafaiva and the fact that Mrs. Helu had made it clear that she was not satisfied with the Police entering the house. 
[48]	Mr. Corbett submitted that the search warrant procedure puts the judiciary between the Police and the citizens to ensure that the rights of citizens are protected and that a failure of the Police to execute a search warrant in accordance with the law meant that the evidence obtained in the search should be excluded. 
[49]	For the Prosecution, Mr. Finau referred me to the statutory provisions relating to search warrants in the Constitution (clause 16), the Magistrate’s Court Act (s. 51), the Tonga Police Act (s. 124) and the Illicit Drugs Control Act (s. 23) and submitted that the manner of execution of the search warrant was legal because the search warrant was read to Tali’auli and he gave his consent to the Police entering the house.
	The statements 
[50]	Mr. Corbett submitted that the evidence proved that Mr. Helu had been handcuffed tightly during the search causing an injury to his wrist and that he was also tackled and strangled.  He also submitted that the handcuffs were left on until he was placed in a cell.  Because of this, he argued, Mr. Helu made a statement involuntarily because he was fearful and specifically fearful of being handcuffed again.
[51]	Mr. Finau referred me to ss. 20-22 of the Evidence Act which are concerned with the admissibility of confessions.  He said that the evidence established that Mr. Helu was not under duress, nor did he suffer any injury from the handcuffs and his statements were fully voluntary and should be admitted.
	Discussion 
The search
[52]	The first issue is the factual one of whether the search warrant was disclosed to Tali’auli prior to the Police entering his residence to conduct the search.  I am satisfied on the evidence that it was not.  I accept the evidence of Mrs. Helu that the Police entered the house unannounced and without first disclosing the search warrant or their purpose for being there.
[53]	In one sense the resolution of this factual issue comes down to a choice to prefer Mrs. Helu’s evidence to that of the Police Officers based on my assessment of their respective reliability and credibility.  But in fact there is more to it than that, as Sgt Tu’utafaiva and Pte Tapueluelu gave starkly conflicting evidence.  Pte. Tapueluelu said that Mrs. Helu met the Police on arrival at the front door and that Sgt Tu’utafaiva had explained the search warrant to her and she let them into the house.  Sgt Tu’utafaiva said that Tali’auli was outside at the rear of the house and he had told him that they were there to execute a search warrant and he had consented to it.  Both witnesses gave their evidence confidently and yet their versions of events are irreconcilable.
[54]	There were other aspects of their evidence that I found implausible.  For instance, if the search warrant was disclosed when the Police arrived at the property I can see no reason why Sgt Tu’utafaiva would later have felt the need to read it to Mr. Helu and Mrs Helu, and certainly not after Mr. Helu was in handcuffs and had been arrested.  
[55]	I also consider it most telling that when it was put to Pte Tapueluelu that the reason Mrs. Helu was unhappy was because the search warrant was not explained to her or to Tali’auli, Pte Tapueluelu said he thought that was one of the reasons.
[56]	Mrs. Helu impressed me as witness.  She was coherent and her evidence was logical.  The events of that morning must have been most dramatic and upsetting and she has every reason to recall them clearly.  She did not strike me as being overly protective of her son, rather she felt aggrieved at the way the Police had handled the matter.  
[57]	I am satisfied that Mrs. Helu objected to the Police being in the house from the time that they entered because the search warrant was not disclosed or shown to her or Tali’auli.  That explains her behaviour and the fact that Mr. Helu awoke to hear her asking the Police why they were in the house.  It also explains how things escalated into a violent situation very quickly. 
[58]	Mr. Finau emphasised that Tali’auli had not objected to the Police entering the house and submitted this was evidence of his consent to the search.  I do not agree.  Tali’auli has health problems which likely explains his failure to involve himself.  He is presently in the United States of America which explains why he was not available to give evidence. 
[59]	The next issue is whether the Police are obliged to disclose a search warrant at the time it is executed or to read and/or provide a copy to the owner or occupier of the residence.  
[60]	In a recent case R v Jian (Unreported, Supreme Court, CR 82 of 2017, 27 June 2018) Cato J said at [7]:
There is no provision in the Police Act, 2010 that expressly lays down what a police officer must do to inform the owner or occupant of a residence or premises of the fact of a warrant before entering to execute a search but it is generally recognized that police must make known to the person that they have a warrant to search premises and the scope of the warrant which requires the occupant to either read or have the relevant parts of the warrant read to him. This defines the lawful extent of the search, or its metes and bounds. It also places the occupier on notice that the police have a lawful right to enter for certain purposes. If the person resists the search he or she is liable to be prosecuted for the offence of obstruction under section 146 of the Police Act. In my view, it is an important requirement of lawful search and seizure where it is undertaken pursuant to warrant that the existence of the warrant be plainly made known to an owner or occupant of premises and explained in a manner that is intelligible and this is a pre-condition to the lawful search. This better ensures that warrants are executed in a civilized manner and that resistance or obstruction which can result so easily in violence is avoided. 
[61]	Mr. Finau did not challenge this as a correct statement of the law in Tonga and I adopt it.
[62]	But it does not follow that the fact that the search was carried out in an unlawful manner means that evidence of the search and the fruits of it must be excluded from Mr. Helu’s trial.  In deciding whether to admit or exclude the evidence the Court exercises a discretion involving a balancing of two important interests, which in this context are likely to have come into conflict.  
[63]	Those considerations are the interest of citizens to be protected from illegal or irregular invasions of their liberty and the interest of the state to secure evidence bearing upon the commission of crimes and to present necessary evidence in Court so as to hold offenders accountable for their crimes.  
[64]	In R v Kitekei’aho (Unreported Supreme Court, CR 36 of 2015, 27 July 2017) Cato J put the matter this way at [24]:
[24] Mr Finau for the Crown referred me to the judgement of Ford CJ in R v Bowe [2003] Tonga LR 24.  In that case, also involving drugs, Ford CJ considered that even if a search was illegal, the evidence in England would be admissible at common law under Kuruma v The Queen [1955] AC 97 which allowed evidence to be given and the death sentence consequently upheld, even though the evidence had been obtained under an illegal search.  Certainly, as Ford CJ remarked, that was the high water mark illustrating the inclusionary approach which had been adopted by English courts at .common law for many years.  However, it is doubtful in the modern world where an individual's right to privacy is given greater emphasis and the legitimacy of police action relating to search and seizure is more closely scrutinised, that the inclusionary approach should be slavishly followed in Tonga today. I raised with counsel the approach of the High Court of Australia in Bunning v Cross (1978)141 CLR 54 where the Court sanctioned a balanced approach to such issues. The Court in considering whether illegally obtained evidence should be admitted had to balance the public interest in maintaining the integrity of search and seizure procedures and ensuring that those whose task it is to enforce the law act lawfully, against the public interest that those who commit criminal offences should be brought to justice. (See further Ireland's Case (1970) 126 CLR 321).  The factors adverted to by Stephen and Aickin JJ in Bunning were;
a	no deliberate disregard of the law should be involved; 
b	whether the evidence could have just as easily been lawfully obtained; 
c	the cogency of the evidence and whether the illegality could be said to affect its cogency; 
d	the importance of the evidence in the context of the case; 
e	if vital evidence, was it of perishable or evanescent nature so that if there were any delay in securing it, it would have ceased to exist. 
f	the seriousness of the offending. 
[25] This approach has gained favour in New Zealand and similar considerations are to be found under section 30 of the Evidence Act, 2006. 
[65]	Both Mr. Finau and Mr. Corbett appeared as Counsel in Kitekei’aho and neither attempted to persuade me that Cato J’s approach was incorrect.  I fully endorse it.  
[66]	The takes me then to the question whether I should in the exercise of my discretion exclude evidence of the search.  This issue is finely balanced in my view.  
[67]	In support of admitting the evidence are that the nature of the illegality does not affect the cogency of the evidence that was obtained from the search, the evidence of the cannabis found in the room in which Mr. Helu was sleeping could (and presumably would) have been obtained lawfully in any event had proper procedures been followed by the Police and the evidence is important to a successful prosecution.  
[68]	On the other hand, the requirements of the law could easily have been complied with had the Police bothered to give the search warrant to Tali’auli or read and explain it to him before entering the house.  In addition, some consideration of the comparative seriousness of the offence and the unlawful conduct of the Police is required.  Whilst I take full account of the grave problems developing from the use of illicit drugs in Tonga, the offence with which Mr Helu is charged is not the most serious of its type given the relatively modest amount of cannabis that was found in his possession and there is no suggestion that it was intended for supply.  Against that, the rights of citizens to privacy and to be free of unlawful search and seizure are important rights which the Court should eagerly defend.  
[69]	The factors that ultimately tip the balance in favour of excluding the evidence are two-fold.  First, I cannot accept that the unlawfulness involved in this case was due to mistake or oversight.  It is clear from the evidence that both Sgt Tu’utafaiva and Pte Tapueluelu were aware of the obligation to disclose the search warrant and its scope to the occupier of the residence before entering.  It must be the case then that the failure to follow those procedures was deliberate.  I am also concerned that on the essential issue the evidence of the Police Officers was so plainly conflicting.  It suggests the possibility of a lack of candour in the giving of the evidence.
[70]	For the reasons I have given I exercise my discretion and exclude the evidence of the search and the fruits of it.
	The confessions
[71]	Under s. 21 of the Evidence Act it is for the Prosecution to prove that Mr. Helu’s statements were voluntary and were not the result of inducement, threat or promise relating to the charge.  The obligation is to prove that beyond reasonable doubt.  Under the proviso to s. 22 of the same Act the Court has a discretion to exclude any confession made by an accused to a Police Officer while in custody. 
[72]	I am satisfied beyond reasonable doubt that there is no basis to exclude Mr. Helu’s inculpatory statements.  The ground advanced is fanciful.  Mr. Helu did not impress me as a reliable witness and I do not accept that he received any injury as a result of his arrest or that if he did it was in any way significant.  He did not complain about an injury when his statement was taken, he acknowledged he was in good health and he did not mention any injury to the Magistrate when brought before the Court.
[73]	Mr. Helu’s statement was taken a whole day and half after his arrest by which time he had time to rest.  Whilst he said that he was afraid he would be handcuffed there is no suggestion that the Police Officers did threaten him in that or any other way.
[74]	His evidence that he was asked questions repeatedly and that he made his statements because he wanted to get released was not put to Pte Tapueluelu or advanced in Mr. Corbett’s submissions.  The first matter is palpably unlikely when the taking of the statements and processing of Mr. Helu took just 40 minutes.  The second matter is no doubt felt by every prisoner.
[75]	I dismiss Mr. Helu’s application to exclude his record of interview and other inculpatory statements 
	Result
[76]	I rule as follows:
(a)	The fact of the search warrant and the fruits of the search are inadmissible and excluded from the evidence to be called at trial
(b)	Mr. Helu’s record of interview and other inculpatory statements made to the Police on 23 April 2017 are admissible and may be put in evidence at trial.

O.G. Paulsen 
NUKU’ALOFA: 8 August 2018. 	     	   	          LORD CHIEF JUSTICE