Commissioner risking contempt finding over defendant no-shows: Courts

The Police Commissioner, Fuiavailiili Egon Keil, has been warned by Supreme Court Judges for potentially being in contempt of court by detaining defendants who were legally required in court for trial. 

Several defendants scheduled to appear for hearings in court this week did not turn up for their cases, bringing the issue to a head. 

Police did not bring the defendants to court for proceedings and instead kept them at the Tanumalala prison. 

In the Supreme Court on Thursday, the Acting Chief Justice, Vui Clarence Nelson, said the accused’s continued detention despite being ordered to be produced in court constituted unlawful detention.

Justice Vui said he did not want to issue a writ of habeas corpus due to an apparent “lapse” in communication between the prosecution and Police. The Judge hoped the issue could be resolved soon. 

A writ of habeas corpus is a centuries-old legal requirement that an accused be brought before the Court to determine whether their imprisonment is lawful. 

“So you can advise the Commissioner of that: that the Court has ordered for him [one of the accused] to be produced again; this is the second order,” said the Supreme Court Judge. 

“If that order is not obeyed I’ll be quite happy to take it to the next level but surely it’s not necessary to do that. 

“We are wasting time on something that shouldn’t be a problem but if by tomorrow it’s not resolved we will take it the next step and no one will find that pleasant.”   

The  Assistant Attorney General, Magele Leone Su’a, told the Court that the failure to appear was caused by confusion caused by a new procedure from the Commissioner’s office that the Attorney General’s Office was not aware of. 

“I have been informed that the proper process needs to be followed and the respective stakeholders need to meet and discuss this issue in moving this forward,” she added.

In another Supreme Court, Justice Leiataualesa Daryl Clarke echoed the same concern about defendants not being present for their hearings. 

Justice Leiataualesa cited section 130 of the Crimes Act in which a person is liable to 10 years’ imprisonment for the offence of kidnapping. 

“The unlawful detention with intent on these defendants can constitute kidnapping,” he said. 

“You bring that to their attention: If they want to take this course we will take this course, but it is a very serious course withholding prisoners from this Court.

“You make sure they fully understand the consequences that follow…” 

Justice Leiataualesa said that everyone must comply with the law. 

He said if there is any issue with a defendant’s appearance that should be communicated through lawyers and, where appropriate, will be allowed. 

“But it’s not for any parties, Police, Prisons or anyone else to withhold unilaterally the presentation of prisoners before this Court,” said Justice Leiataualesa. 

“This matter will be adjourned for re-mention 10am tomorrow. 

“I’m issuing formal orders to the Commissioner of Police and officer-in-charge of the Prison for the defendants to be brought down before this Court by 10am.”

The prosecution was also advised to consult with the Police on the consequences of disobeying Court orders. 

An Attorney General’s Office lawyer, Ann Matalasi, was the prosecutor.

She told the Court that Police had advised that a letter was sent to the Registrar that they needed the Court’s list of required prisoners three days before proceedings before defendants could  be released. 

But Justice Leiataualesa asked why Police considered it their place to tell the courts how to conduct their business.

He urged Government parties involved in Court matters that their actions must be taken on legal advice to avoid the risk of criminal prejudice as a result of acting unilaterally. 

“Just because you are a Police Officer it does not make your [actions] and conduct lawful,” he said.

Attempts to get a comment from the Police Commissioner, Fuiavailiili Egon Keil were unsuccessful. 

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