A search warrant carried out by police was found inadmissible and excluded from evidence to be called in an illicit drug trial at the Supreme Court in Nuku'alofa, because the search was carried out in an unlawful manner.

Lord Chief Justice O.G. Paulsen made his ruling on August 8, after a hearing on admissability of evidence filed by an accused Siaosi Helu, who was charged with one count of possession of the illicit drug, cannabis.

Helu, who was to stand trial by jury, had sought a ruling to exclude certain evidence that the prosecution intended to call at his trial specifically: evidence of a search conducted at the residence owned by his father Talia'uli on April 22, 2017, where he was found to be in possession of cannabis in a room he was sleeping in.

He also looked to exclude his record of interview, voluntary confession statement and written statement of charges form, all given or signed by him when interviewed by the police on the same date.

The Chief Justice said Helu argued that the police failed to advise the owner or occupiers of the residence of the fact of the search warrant and its contents before entering the premises.

He also claimed that his statements were involuntary because he was fearful of being handcuffed and injured by the police, and was fed-up with being asked the same questions repeatedly and was told that if he made a statement he would be released.

The first issue was the factual one of whether the search warrant was disclosed to Tali'auli, whose home was searched prior to the police entering to conduct the search. The Chief Justice was satisfied based on the evidence that it was not.

He accepted the evidence of the mother Mrs Helu that the police entered the house unannounced and without first disclosing the search warrant or their purpose for being there.

The requirements of the law could easily have been complied with had the police bothered to give the search warrant to Tali'auli or read and explain it to him before entering the house.

In addition, some consideration of the comparative seriousness of the offence and the unlawful conduct of the police was required.

“While I take full account of the grave problems developing from the use of illicit drugs in Tonga, the offence that Helu is charged with is not the most serious of it, given the modest amount found in his possession, and there was no suggestion that it was aimed to be supplied.”

Right to privacy

He said against that, the rights of citizens to privacy and to be free of unlawful search and seizure are important rights, which the court should eagerly defend.

The Chief Justice said he cannot accept that the unlawfulness involved in this case was due to mistake or oversight.

"It is clear from the evidence that both the police officers, Sgt Tu'utafaiva and Pte Tapueluelu were aware of the obligation to disclose the search warrant and its scope to the occupier of the residence before entering. It must be the case then that the failure to follow those procedures was deliberate," he said.

“I am also concerned that on the essential issue the evidence of the police officers was so plainly conflicting. It suggests the possibility of a lack of candour in the giving of the evidence.”

He ruled that the search warrant and fruits of the search were inadmissible and excluded from evidence to be called in trial.

However, he was found beyond reasonable doubt there is no basis to exclude Helu’s inculpatory statements and the ground advanced was fanciful.

Helu did not impress him as a reliable witness.

"I do not accept that he received any injury as a result of his arrest."

The trial started this week at the Supreme Court.