Detention in Police cell unlawful, Court rules

By Joyetter Feagaimaali’i-Luamanu 02 May 2018, 12:00AM

“The Apia Police Station is not by law a prison and their continued detention there is accordingly unlawful.”

So rules Supreme Court Justice, Vui Clarence Nelson, in favour of prisoners, Tagaloasa Filipaina and Ovaleni Poli, who are fighting to go back to Tafa’igata Prison.

The ruling follows a two-day hearing last month. 

Tagaloasa and Poli had been moved to Apia after a failed mass prison escape plot at Tafa’igata. Now they have hired a lawyer to try and get them out of the Apia cell so they can return to Tafa'igata.

In Court, Jeffery Ainu’u represented the Police and the Samoa Prison and Correction Services while Pa’u Mulitalo Tafaogalupe represented the prisoners.

According to the ruling by Justice Vui, the applicants are prisoners serving terms at Tafa'igata prison.  

“They depose that on or about 3 February 2018 they were transferred from Tafaigata to the holding cells of the Apia Police Station on Main Beach Road, Apia. They have been detained there now for some three months,” said Justice Vui.

“The reasons for transfer are not material but are said to be administrative and because they were inter alia suspected of smuggling and narcotics into Tafaigata prison. There is no allegation they are being mistreated or discriminated against at the Apia Police Station. 

“Unchallenged affidavit evidence from the respondent is they are housed in individual cells and are allowed normal visitation and other privileges, including visits by their counsel as is available to any other prisoner.” 

Justice Vui pointed out the applicants have filed a motion seeking their immediate return to Tafa'igata prison on various grounds.

At the hearing, the applicants’ lawyer accepted the other grounds had no merit and confined himself to the argument that the Apia Police Station is not a prison in terms of the applicable law. 

“Furthermore, even if it were, the applicants’ detention ‘has exceeded the temporary timeframe’ for which the applicants should be kept at the Apia Police Station.

“The respondent seeks to strike out the motion on the basis that the applicants have no cause of action and it is therefore frivolous, vexatious and an abuse of process. 

“There is no dispute as to the law governing motions to strike out: the jurisdiction is to be exercised sparingly and will only be utilised in plain and obvious cases where the plaintiff or applicants cause of action is so untenable that it is doomed to failure.” 

According to Justice Vui, there are numerous authorities for this proposition of law e.g. Enosa v Samoa Observer Co Ltd [2005] WSSC 54.

“As to the applicant’s first argument that the Apia Police Station is not a prison, Justice Vui took a stroll down history lane. 

“As all are well aware, Samoa or Western Samoa as it was then known was a German colony up to the outbreak of World War I in July 1914. From then on it was occupied by New Zealand until independence on 1 January 1962. “Following cessation of hostilities in November 1918, the victorious Allied Powers in 1919 executed the Treaty of Versailles formally ending the war with Germany and her allies. 

“They also established at the Versailles conference the forerunner of the modem day United Nations Organisation being a League of Nations charged with inter alia maintaining world peace and redistribution of Germany’s overseas possessions and assets including German Samoa.

“The League conferred on New Zealand a mandate to administer Samoa and one of the first actions of the New Zealand Administration was to pass the Samoa Act 1921 (1921 NZ No. 16) intended to be a comprehensive legislation for the ‘peace order and good government’ of Samoa.” 

Justice Vui pointed out that under the Act is the appointment of the administrator. 

“There shall be an Administrator of Western Samoa, who shall be appointed by the Governor General and shall be stationed at Apia, and shall, subject to the control of the Minister of Extremal Affairs, be charged with the administration of the executive government of the territory, save so far as other provision is made in that behalf by this Act. The Chief Judge of the High Court shall ex officio be the Deputy Administrator of Western Samoa. 

“While the office of administrator is vacant, the deputy shall, without further authority or appointment, assume and exercise all the powers of the administrator, and all the provisions of this Act or of any other enactment with respect to the administrator shall extend and apply to the deputy accordingly. 

“Amongst other things indicated under the Act for Police and Prisons the Administrator shall by warrant under his hand and the seal of Samoa appoint as prisons such buildings or places in the territory as he thinks suitable for that purpose. 

“Any person in lawful custody in Samoa may be detained in any such prison, and may from time to time be removed by order of the administrator or of a Judge of the High Court from one prison to another,” pointed out Justice Vui.

The Government’s response that it is the contention of the respondent that on 20 June 1929 pursuant to these powers and provisions in particular clause 39, the then Acting Administrator, G.W. Clinkard, designated the Apia Police Station as a prison. 

Justice Vui pointed out the Samoa Act 1921 is very clear. 

“It vests executive power in the administrator ‘save so far as other provision is made in that behalf by the Samoa Act’. The statute goes on to appoint the Chief Judge as Deputy Administrator and provide for the exercise by the Deputy Administrator of the powers and functions of the administrator in the administrators absence. 

“These are very specific provisions. Nowhere in the legislation does it contemplate that some other person can act in the stead of the administrator. Section 7(1), which the respondent relies on states that if the administrator is incapable of acting due to sickness, absence ‘or otherwise’, he may authorise the deputy administrator to act in his place as acting administrator.

It does not say may authorise ‘the Deputy Administrator or some other person’. Its purpose and intent is crystal clear’,” said Justice Vui. 

He noted that only the Deputy Administrator that is the Chief Judge can act in place of the administrator. Mr. Clinkard was not the Chief Judge and could not therefore have been validly appointed as Acting Administrator.

“The evidence here is clear. The Administrator had no power to appoint Mr. Clinkard Acting Administrator.

“Having reached that conclusion, it is not necessary for the Court to consider the applicants second argument that their incarceration at the Apia Police Station should be temporary only. It is enough that the applicants have an arguable case that the Apia Police Station is not by law a prison and their continued detention there is accordingly unlawful.

“The respondent has failed to show the applicants motion is so untenable that it cannot possibly succeed, the application to strike it out is dismissed. Cost of this proceeding reserved to be dealt with as costs in the cause,” ordered Justice Vui. 

By Joyetter Feagaimaali’i-Luamanu 02 May 2018, 12:00AM

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