Pauga denied release from custody

A  man fighting extradition to Samoa for his alleged role in a plot to assassinate the Prime Minister had an application to be released from jail dismissed by an Australian court on Friday. 

Talalelei Pauga, a resident of Brisbane, Australia, was first arrested by Police in late August on the request of Samoan authorities. On Friday a motion to secure his release from prison was denied by a Judge in the Supreme Court of Queensland. 

Pauga, through his lawyers Greg Finlayson and George Mancini, argued that he has been unlawfully detained in custody since he was first arrested in late August, following Samoa’s request he be extradited to face trial.

Pauga wanted to be released to await the decision on his extradition request while outside of custody.

But that application was denied by Queensland Supreme Court Justice Graeme Crow. 

Pauga is accused of conspiring to murder Prime Minister Tuilaepa Dr. Sailele Malielegaoi, along with co-accused Lema'i Faioso Sione, Malele Atofu Paulo, and Taualai Leiloa, who pled guilty to the assassination plot in February and will be sentenced this month.

Sione and Paulo’s hearing is scheduled for August 2021, and they have been remanded on bail until then.

Pauga contended he has been unlawfully detained since Thursday 20 August because he was never physically or virtually brought before Magistrate immediately after his arrest as is required by law – including by Australia’s Extradition Act.

He first physically saw a Magistrate on Monday 21 September and had been in custody for the entire month, having been transferred to Arthur Gorrie Correctional Centre four days after his arrest, where he remains today. 

Mr. Finlayson told the Samoa Observer Pauga was not permitted to attend his hearing on Wednesday in person, but watched on a video conference link.

“We are still considering the reasoning by which the Court held that he was not therefore required to be released,” Mr. Finlayson said.

He said Pauga is considering whether to appeal the dismissal or bring a new case of unlawful detention instead.

The Supreme Court hearing began on Wednesday and continued until Friday. It was between Pauga and four respondents: the chief executive of the Queensland Corrective Services, the State of Queensland, Queensland’s Attorney General and Samoa.

In his written submission to the judge, Pauga said there were several parties who were supposed to bring him before a magistrate at the earliest opportunity, and failed to.

He said the arresting officer is obligated to comply with the extradition arrest warrant, and to bring the arrested person before a magistrate.

But the arresting officer did not, and handed over Pauga to the Brisbane Watch House who then, Pauga argues, assumed that responsibility.

“The Australian Federal Police Officer executing the warrant, the officer in charge of the Brisbane Watchhouse and Samoa, through its legal representatives, had the obligations to ensure compliance with the extradition arrest warrant under the [Extradition Act],” the submission states.

“They did not take any or effective steps to effect, or attempt to effect compliance. There has not been any explanation for that failure.”

Pauga contends that the COVID-19 response should not have stopped him from being seen by a Magistrate and that his detention so far has breached his human rights. 

“The obligation of a person being brought before a Magistrate does not depend on the person being physically taken from the custody in the cells of a watch house to a Court,” his submission states.

“His detention was arbitrary. The applicant’s liberty was not deprived in accordance with procedures established by law. The applicant’s right to liberty and security required that he be brought before a Magistrate.

He also made the case that the Magistrate who ordered his remand should not have had the powers to do so. This claim was widely disputed in submissions by the other parties.

In its submissions, Samoa states that Pauga’s application to be released should be dismissed because it is an “impermissible collateral attack” on orders made by Magistrates, and that his contents “have no merit.”

Represented by lawyer Marc McKechnie, Samoa argued that Pauga has already tried arguing that he has been unlawfully detained and failed.

Between the Magistrate Court in Brisbane, and the Correctional Centre being in “quarantine lockdown” conditions, and an argument that the law does not specify that a person should be physically brought before a magistrate, Samoa argued his detention until now remains legal.

Samoa states the Magistrates Court in Brisbane was operating under “lockdown procedure” because of COVID-19 when Pauga was arrested, and could not be produced in person. His lawyer Mr. Finlayson appeared by phone on his behalf.

It was at that time Acting Magistrate Byrne ordered Pauga be remanded in custody, with the matter adjourned for 3 September. Samoa argues that because his lawyer represented him, Pauga was presented to a Magistrate soon after his arrest, making his current detention lawful.

“If such a personal physical appearance was a mandatory precondition then it would be expected that it would appear clearly in the text. It does not and this counts strongly against Mr Pauga’s proposed construction,” Samoa states.

“Samoa submits that the lawful basis for the detention of Mr Pauga is the order of Acting Magistrate Byrne.”

The written submission also makes a case that Pauga should be stopped from re-litigating the matter of his detention, because he has allegedly lost this argument already.

“The Applicant has already challenged the lawfulness of his remand and he has failed,” Samoa submitted.

The Corrective Services’ written submission, prepared by lawyer Renee Berry, argues that Queensland had the valid orders to detain Pauga, and attempted to explain why he was brought before a Magistrate later than Pauga’s lawyers expected.

The submission argues that the Corrective Services had the authority from Acting Magistrate Byrne on 20 August to detain Pauga, and that he cannot be released unless the Magistrate’s orders are successfully challenged in court.

The submission states that Pauga was not produced for hearings throughout September and October in person or by video link as required because Arthur Gorrie was in a “quarantine lockdown.”

“There were also significant prisoner disturbances that disrupted the ability of the AGCC to facilitate video links.

“Following the lifting of restrictions at the AGCC, the applicant’s further court appearances, either in person or by video link, were facilitated…,” the submission continues.

In a reply submission to the Corrective Services’ case, Pauga submitted that the Magistrate Court of Queensland does not have a role in extradition cases, making any Magistrate decision in Pauga’s matter up for debate, in Pauga’s opinion.

“There is no conferral of any jurisdiction, power duty or function on the Magistrates Court of Queensland in extradition matters,” Pauga’s submission states.

“Such jurisdiction may not be conferred by the Commonwealth on the Magistrates Court of Queensland […] the officers of the Magistrates Court of Queensland have assumed powers duties and functions which they do not have.”

Judge Crow’s written decision has not been released to the parties yet.

Meanwhile, Pauga is engaged in the separate matter of his extradition to Samoa, which he is fighting. 

At his last hearing earlier this month, the Extradition Magistrate in Brisbane heard that Pauga’s legal team expect the case to take three years, with evidence being sought from an allegedly uncooperative Samoa.

Pauga has said he suspects he will be prejudiced in his trial and punished because he is Australian and because of his political opinions.

His lawyers have submitted several pieces of evidence that Samoa “patently discriminates” against foreign nationals, in its legislation and in the allocation of space for repatriation flights during 2020.

Pauga is also submitting to have his extradition matter allocated to a Magistrate, and for his case to stop being rotated through whichever magistrate is rostered on a given day.

His next extradition hearing is scheduled for February 2021.


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