No breach of curfew for group arrested inside private home [1]
Friday, August 21, 2020 - 18:57
A group of four people who were arrested inside a private home at Houma and fined $1000 each for “breach of curfew” in May, had their convictions set aside after the Lord Chief Justice granted their appeal.
The appellants submitted that the lower court had failed to refer to evidence that they were not out on the street and were all inside their friend's home at the time of their arrest.
‘Amanaki Lamelangi, Poline Lamelangi, Telisa Sainz and ‘Alisi Tonga were arrested on May 23. The four were convicted and fined in the Maginstrate's Court on July 2 for breaches under Section 39 of the Emergency Act and fined by $1,000 pa'anga each by Senior Magistrate Pahulu-Kuli.
The four appealed against their convictions and sentences on July 29.
The Lord Chief Justice in a judgment by consent on August 20, set aside the decisions of the Senior Magistrate.
The Crown also conceded but only on the grounds that there was no breach of curfew because the appellants were inside a private home.
Emergency Act
In a four-page judgment, the Lord Chief Justice said on March 20, 2020 the Prime Minister issued a Declaration of a State of Emergency pursuant to section 32 of the Emergency Management Act (the Act) in response to what has become the coronavirus pandemic.
That Declaration has been renewed on a number of occasions since, the most recent being on August 4.
Since the State of Emergency was declared, the Prime Minister also issued ;a number of "National COVID-19 Restrictions Notices".
The Notices are stated to have been issued pursuant to powers conferred by sections 36 and 37 of the Act. Relevantly, the Notices provided for night-time curfews between specified hours.
On May 23, the appellants were at a friend's residence in Houma. They were charged with failing to comply with a direction contrary to section 39 of the Act. Section 39 provides: Any person who, without lawful excuse, fails to comply with a direction under this Act, or required by an authorised officer to give assistance, commits an offence and shall be liable upon conviction to a fine not exceeding $10,000 or to imprisonment for a ;term not exceeding 3 years or both.
Grounds of appeal
The Chief Justice said in essence, the appellants were charged with having breached the curfew imposed by the Notice in force at that time.
The grounds of their appeal included that the learned Magistrate erred when she:
- ruled that the Prime Minister issued the National Covid-19 Restrictions Notices as an 'authorised officer' under the law and by his power pursuant to section 37 of the Act;
- ruled that the notices covered all the people of Tonga, who knew the restrictions because a state of emergency have been worldwide for about six months;
- accepted that the directions, the subject of section 39 of the Act, were as contained in the Notices which were broadcast over the radio;
- ruled that even though none of the police officers gave any direction to any of the appellants prior to their arrest, the curfew stipulated in the Notice issued on May 15, 2020 was deemed to be a decision given by an authorised officer according to law;
- failed to observe natural justice in relation to the conduct of the police officers in approaching and arresting the appellants;
- failed to include in her summing up that the prosecution had failed to produce any of the Notices or any other document other than the Declaration of a State of Emergency by the Prime Minister as to the night-time curfew as at the date of the appellants' arrest;
- failed to refer in her summing up to the evidence that at the time of their arrest, the appellants were all inside their friend's home and none of them were out on the streets.
No curfew breached
On August 19, the respondent [the Crown] filed a notice of intention not to oppose the appeal. The Crown also clarified their position being that it conceded the appeal only to the extent of the stated ground (the last of those recited above concerning no breach of curfew).
In addition, it submitted this case was not a suitable vehicle for consideration of the balance of the grounds of appeal.
The counsel for the appellants responded that they were content for the appeal to be allowed solely on the 'no breach of curfew' ground. The Chief Justice then allowed the relevent grounds 6. and 8. of the appeal.
"The decisions of Senior Magistrate Pahulu-Kuli on 2 July 2020 in proceedings CR 204, 205, 207 and 208 of 2020, whereby she convicted and fined the appellants for breaches of section 39 of the Emergency Management Act, are set aside."
The appeal was otherwise dismissed, and no order for costs, he said.
Ms L Tona represented the appellants.
Mr T 'Aho from the Attorney General's Office represented the respondents (Police).