Lawyer files petition for prisoners’ transfer

By Deidre Tautua-Fanene ,

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Justice Leiataualesa Daryl Clarke presided over the matter on Monday.

Justice Leiataualesa Daryl Clarke presided over the matter on Monday.

The matter between the Police, Samoa Prison and Correction Services, Tagaloasa Filipaina and Ovaleni Poli, has been adjourned for hearing on 5 April, 2018, at 10 am.

The two prisoners are represented by lawyer, Pa’u Tafaogalupe Mulitalo.      

Justice Leiataualesa Daryl Clarke presided over the matter on Monday. 

Mr. Mulitalo is seeking the Court for his clients to be transferred from Apia Police Station to Tafaigata Prison.  

During the civil mention, Justice Leiataualesa said the set date is to hear the application by the respondents to strike out the applicant’s notice of motion for orders.   

Outside of Court, Mr. Mulitalo said the application is basically to release his two clients from the Police Station to Tafaigata Prison.   

“The response from the Attorney General is to strike out the motion by Tagaloasa and Ovaleni, which is in relation to their release,” Mr. Mulitalo told the Samoa Observer yesterday.

“That’s all the application is for and it is based on the grounds that I have mentioned in my motion.”

1. “First of all the applicants are prisoners.”

2. “Secondly, the Apia Police Station was declared a ‘prison’ by way of appointment of Prison Orders dates 20th June 1929 made pursuant to the clause 39 of the Samoa Act 1921.”

3. “The Commissioner of Prisons has wide discretion/powers under section 5(2)(d) of the Prisons and Corrections Act 2013 (the Prisons Act) to control prisoners and allocate them to such prisons as he sees fit. The applicants have been transferred to the Apia Police Station as the Commissioner considers it fit to do so.”

4. “Section 33(b), (d) and (j) of the Ombudsman Act 2013 which the applicants pleas at paragraph 3 of their motion is untenable at law. The said section deals with the functions of the Ombudsman and creates no statutory obligations for the Commissioner of the Police and the Commissioner of Prisons and Corrections. As such, this ground should fail;

5. “Section 16(2) (d) of the Police Service Act 2009 provides that the Commissioner of Police may exercise any powers necessary for ‘the implementation within Samoa of its Human Rights and other international obligations.’ The Applicants fail to demonstrate how this section supports the orders that they seek.

6. “Section 34 of the Prisons Act deals with transfers of prisons, the transfer of the Applicants to the Apia Police Station is consistent with this section as the applicants are (a) prisoners, (b) were transferred and are incarcerated in a prison and (c) the Commissioner of Prisons has ordered the transfer of the applicants.”

According to Mr. Mulitalo, the detention of the applicants in the cells at the Police Station is unconstitutional under article 89 of Samoa’s Constitution.

“The act by the Police Commissioner and Commissioner for Prisons has failed to promote and comply with human rights and international obligations in accordance with sections 33(b)(d)(j) and 38 of the Ombudsman Act 2013,” he said.

“The respondent, through the act by the Police Commissioner, has failed in his lawful duty to comply with section 16(2)(d) of the Police Service Act 2009 from denying access by counsel for the applicants to obtain instructions from the applicants detained in police holding cells.

“That the Commissioner of Prisons and Correction Services was negligent in his duty to wrongfully apply section 34 of the Prisons and Corrections Act 2013 to the transfer of the applicants to the Central Police Station in Apia.

“And upon any further grounds by verbal testimonies by the applicants, if leave is granted for their affidavits to be dispensed with because of difficulty in obtaining further instructions from them in the holding cells at the police station in Apia.”

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