Lawsuit over Police raid gets green light

A lawsuit brought by a Siumu family against the Police will proceed after the Court of Appeal granted the plaintiffs a required extension. 

Silafaga Tupito and Fatumanavaupolu Atiinae, represented by lawyer Muriel Lui, filed the appeal after the Supreme Court refused them leave to bring the proceedings, which were filed outside a statutory time limit. 

Mrs. Tupito's home was raided by armed Police Officers in September 2015 when her husband was taken into custody after being accused of possessing marijuana.  

Days later, the mother was home with her two young children during a second raid by the authorities which she described as an abuse of process and  carried out by Police who were unnecessarily armed. 

However, the mother did not seek legal counsel until more than a year later – exceeding the 12 month statutory time limit. 

The law allows for postponements of that limit in cases of a "mistake"; the appeal case centred on the legal definition of that term. 

Ms. Lui had argued that the family were labouring under a mistake of fact, namely that the Ombudsman represented the Government for the purposes of making complaints within the time-frame prescribed. 

But the Judge presiding over the initial case disagreed stating it was no mistake of fact. She felt the appellant had made a conscious decision to lodge a complaint with the Ombudsman instead of seeking legal advice. The Judge stated that ignorance of the law was no excuse and was not a valid excuse or mistake that the appellants were waiting on the report of the Ombudsman given that such a report could not be questioned in Court. 

Furthermore, the Judge considered there was prejudice to the Police case in that most of the officers who had attended the search and could be called upon to give evidence had resigned, been terminated or were on overseas missions. 

But in dealing with the grounds of the family's appeal, the Court of Appeal said the appellants had apparently made the assumption that lodging a complaint with the Ombudsman could be equated with the commencement of proceedings against the Government. 

Ms. Lui contended that for the purposes of lodging an appeal a “mistake” could be said to include mistakes of law; the Prosecutor and Attorney General’s Office lawyer, David Fong, argued that only mistakes of fact could qualify. 

“In our view mistake does include a mistake of law for the purpose of s 21 of the Limitation Act in this country,” the Court of Appeal ruled. 

“First, the statute itself uses the word mistake without qualification. In its ordinary usage mistake embraces all kinds of mistake, whether of law or of fact. 

“The first appellant deposes that she was not aware of the requirements of s 21 but in any event thought that the Ombudsman’s Office was part of the government. 

“These are entirely understandable errors for a non-lawyer.”

On the ground that the defendant is not materially prejudiced in his defence, the Court of Appeal ruled against this. 

According to the prosecution from the ten officers who attended the raid, two were still police officers while the rest have either resigned, dismissed, on a mission or study leave. Mr. Fong submitted that the defence would be prejudiced by the unavailability of witnesses and the dimming of memories. 

But the Court of Appeal emphasised that Police had had the benefit of being alerted to the complaint at an early point. 

The Court also found there are procedures in place for dealing with witnesses who have left the Police or gone overseas. 

“It is far from clear that the Police would need to call all the officers who had been present on the day," the Court ruled. 

“We do not think that the prejudice qualifies as material for present purposes.” 

The Court of Appeal granted the appellants the extension required to proceed with lawsuit with a statement of claim already filed in the Supreme Court. 

It could not be confirmed how much the lawsuit is seeking.  

The respondent was ordered to pay the appellants jointly a total of $5,000 towards their costs. 

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