By Linny Folau
Tu’ifua Angilau who was found guilty on possession of 1.95 grams of methamphetamine last year failed to win his appeal against conviction, when the Appeal Court found there was no miscarriage of justice in a judgment delivered on 16 May in Nuku'alofa.
As background, Justice Langi on 5 March 2024 found him guilty on one count of possession of the illicit drugs. His notice of appeal raised two grounds with the first relating to the procedure adopted by police when the appellant was arrested, and the second relied on fresh evidence.
The Appeal Court found that Mr Angilau failed to show that there was any possibility that the error affected the remainder of the trial judge's reasoning or caused a miscarriage of justice. It addressed the second when he alleged that the trial judge's verdict was based on the wrongful acceptance of evidence that the illicit drugs were found in his car when he was first apprehended.
“His notice of appeal alleged that after his conviction, he learned that the drugs were planted by another person at the direction of the senior police officer in charge of his arrest. As this issue was never raised at trial, we granted an adjournment of the hearing of this appeal on 12 November 2024 on the strict condition that within 21 days Mr Angilau must file and serve an application to adduce fresh evidence with supporting affidavits. He failed to comply,” the Appeal Court stated.
The Appeal Court confined themselves to the first ground of appeal which was that, upon arrest, Mr Angilau was not informed of the fact that he was under arrest and was not told the nature of the offence for which he was arrested for. He also submitted that the trial judge erred in law by not considering the defence submission that s 115(3) of the Police Act was not complied with.
Mr Angilau did not give evidence at his trial. However, the police evidence was challenged as being unreliable and inconsistent in various respects. One issue was whether the police had power to conduct a search of Mr Angilau's car without a warrant. In relation to this issue, the trial the judge accepted the evidence of Officer Vi, and accordingly found that the police did have grounds to search without a warrant. There was no appeal from this finding.
The Appeal Court stated that the Reasons for Verdict outlined the police evidence which the trial judge accepted.
Police had received reliable information that Mr Angilau selling illicit drugs from his car. Officer Vi then put a team together to intercept and detain him. He made various manoeuvres in an attempt to get away from the police cars. Eventually police blocked Mr Angilau's vehicle, so that he could no longer drive it. He stopped his car and remained seated in the driver's seat. Police with weapons instructed Mr Angilau to put his hands up. Mr Angilau did not comply with their request but, still seated in the car, bent forward. When the request to put his hands up was repeated, Mr Angilau put his hands behind his head. Officer Hanisi could see that he had something in one of his hands. When Officer Vaka approached the car Mr Angilau put his hands behind his head apparently around the head-rest of the driver's seat.
Officer Vaka forcefully removed Mr Angilau's hands from the head-rest and proceeded to handcuff him. While the car was still at the scene Officer Hanisi noticed two small plastic packets of white powder. on the floor behind the driver's seat. He was put into the back seat of the car, on the passenger side (not the driver's side) and taken to the Longolongo Police Station and informed of why he was being arrested and his rights.
“It argued that although Mr Angilau was apprehended at the roadside, he was not arrested then because it was only after police formally searched him and his car at the police station that they had reasonable grounds to believe he had committed an offence; it was then that he was told that he was arrested for possessing the illegal drug. On the facts in this case, there was no possibility of a causal connection between the failure to comply with s 115(3), and the evidence which police obtained after they complied with this section and executed searches at the police station. It was solely a timing issue, stated the Appeal Court.
"On these facts the timing and location of the search and questioning could not have prejudiced his rights. We reject the submission that the evidence led by the Crown was therefore tainted and should have been excluded by the trial judge, had she determined the question raised by counsel for Mr Angilau at the trial.
“In our view therefore, while there had been an error of law demonstrated in the reasons of the trial judge, Mr Angilau had failed to show that there was any possibility that the error affected the remainder of the trial judge's reasoning or caused a miscarriage of justice."
The Appeal Cour dismissed the appeal.
