Why the Ombudsman’s report against Police cannot be used in Court

The report by the Ombudsman from his Office’s investigation into the arrest of a member of the public at the Fugalei Market – which led to charges against Police Commissioner, Fuiavailiili Egon Keil – is not admissible evidence.

As a result, it cannot be used in Court.

That’s what Ombudsman, Maiava Iulai Toma, told the Samoa Observer yesterday when his opinion was sought about the Court withdrawing and dismissing charges against the Police Commissioner.

Fuiava had faced charges including unlawful detaining of a person, disorderly conduct in a public place, perjury and making a false statement in relation to the wrongful arrest of Suitupe Misa at the Fugalei Market last year.

Two weeks ago, New Zealand Queens Counsel and Prosecutor, Paul Dacre, asked the Court to withdraw the charges.

“I am of the clear view that in respect of each charge the admissible evidence available is not sufficient to enable the offences to be proved,” Mr. Dacre told the Court.

“It follows that I am of the clear view that the evidence is no longer sufficient to show a reasonable prospect of conviction. 

“In these circumstances I am obliged to follow the guidelines which provide and direct that the prosecution must be discontinued.”

Contacted by the Samoa Observer for a comment, the Ombudsman made it clear he has not read the report by Mr. Dacre. He said however he understood the substantive part of it to be insufficient admissible evidence. 

“You should be aware that contents of an Ombudsman Report may not be used in Court as evidence except when somebody is prosecuted for lying to the Ombudsman,” said Maiava. 

“Ombudsman Report is therefore not admissible evidence. The N.P.O would have to produce evidence of their own for charging the Commissioner. 

“I have no idea what that evidence was or in what respect they were considered by Mr. Dacre to be insufficient.”

In the Ombudsman’s report on Mr. Misa, Maiava described the incident at Fugalei market on 18th August 2015 as a “watershed moment in the history of Samoa” where police used firearms in a public place to carry out a pre-planned arrest of an individual. 

Mr. Misa was arrested at gunpoint by a contingent of armed plain clothed officers in front of a shocked and distressed Fugalei marketplace. 

It transpired that Mr. Misa had "committed no crime" and the arrest was "carried out based on insubstantial and second-hand evidence."

 “The Commissioner of Police failed to meet basic investigation principles and placed undue consideration on second hand evidence, leading directly to the wrongful and unlawful arrest of Suitupe,” the report’s findings read. 

“The Commissioner’s decision to arm and allow the use of firearms by his officers contravened the Use of Force policy, was irresponsible, and could negatively impact the overall safety and security within Samoa.

“The Commissioner failed to take appropriate steps to identify the actions of his officers as being part of a police operation, leading to widespread distress and in one case serious health issues.”

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