Two prisoners who suffered abuse in Tonga's Hu'atolitoli Prison had escaped under duress a Judge has declared, after accepting unchallenged evidence that the two had been tortured by the Prison authorities.

The court was told by appeal counsel, Laki Niu, that the men had been stripped to their underwear, and exposed to the elements for two days and nights. One was lying on a concrete floor cuffed by his wrists and ankles to an iron pipe with no shelter from the sun or rain, while at the same time the other was forced to hang from his wrists outside his mosquito-ridden punishment cell.

The prisoners managed to break free at night and escaped from the prison farm. Their appeal against a sentence of two-months imprisonment for escaping from the Hu'atolitoli Prison on 24 January 2003 was upheld by Mr Justice A. Ford in the Supreme Court, Nuku'alofa, on June 9.

The judge also noted that neither Counsel could show that Tonga's King in Council had appointed Prison Visiting Officers in order to properly deal with prison offences under the law.

"The punishments the appellants were subjected to were both extreme and unlawful. Indeed it is difficult to take exception with Mr Niu's description of the suffering the two men endured as "torture"," said Mr Justice Ford.

In his written decision released to the press Mr Justice Ford said that he was satisfied that the appellants, Viliami Tapa'atoutai and Mateaki Lolohea were acting under duress and that they should have been acquitted by the Police Magistrate when they were tried for escaping.

Viliami Tapa'atoutai is serving 15-years imprisonment for manslaughter, and Mateaki Lolohea is serving a 6-years sentence for housebreaking, theft and the possession of Indian hemp.

After they escaped from the prison the two tried to contact Tonga's Minister of Police, Clive Edwards, to complain about their treatment but they found that the Minister's fenced and guarded compound had tighter security than the prison and they were unable to reach him. Instead they wrote a letter to the Chief Justice about their treatment.

After eleven days of freedom they returned voluntarily to the prison, and were subsequently charged with escaping and convicted.

Mr Justice Ford in his decision noted that Counsel Laki Niu's grounds for appeal was based on unlawful punishment that was given to the prisoners by the prison guards.

Mr Niu told the court, "at about 9 a.m. on Thursday 23 January 2003, Lolohea was ordered to wear only a pair of shorts and a singlet and to lie on his back on the concrete floor of the sunning cell, underneath and along where a two inch galvanised pipe was running from one concerete wall of the cell to the opposite concrete wall about 18 inches above the floor. His hands were then handcuffed above and hanging from the pipe, and his ankles were similarly cuffed above and hanging from the pipe with leg cuffs. He was thereby left exposed to the sun during the day and the cold and dew of the night.

"At about 9,30 am of the same morning, Tapa'atoutai was similarly ordered to wear only a pair of shorts and a singlet and to stand with his back against the outside of the steel bars of the closed door of his punishment cell. His right-hand was then cuffed above his right shoulder to the steel bar back behind him and his left hand was similarly cuffed above his left shoulder to the steel bar behind him with another pair of handcuffs. He would have to hang by his wrists if he was tired of standing or wanted to sleep."

"They were both left at the mercy of the mosquites which were always plentiful there. Neither was told how long they were to be so cuffed. The only relief they had was when they were uncuffed to go to the toilet or to have their meals, which was only for about five to ten minutes.

"They suffered and were tortured by the pain of the hand and leg cuffs, the bite and sting of the mosquitoes, the absence of sleep, the heat of the sun, and the cold and dew of the night, and of the wet of the rain. The chief gaoler Moleni Taufa (the Superintendent of Prisons) had ordered and had intended that these two prisoners be so punished and tortured in order that they would learn to obey and comply with the prison rules," Mr Niu said.

He told the court that no such punishment and no torture is allowed under the Prison Act or Prison Rules and therefore the punishment was unlawful.

"At about 10 pm on Friday night 24/1/03 with no hope of having a lawyer to see them and no knowledge when their torture would be over, they broke the cuffs off and broke out of Hu'atolitoli prison. At first they tried to see the Minister of Police but he was too well fenced in and guarded at the police compound in Longolongo. They tried to see the Chief Justice but he was away in Tuvalu until 3/2/03, so they decided to wait for the Chief Justice to return to complain about their treatment in prison.

"On 4/2/03 they wrote a letter to the Chief Justice about what had happened to them and gave it to a friend to take for them. They then went and gave themselves up to prison authorities on the same day."

Mr Niu argued that the appellants were justified in breaking out and escaping from prison under the circumstances they were in and that the defence of duress of circumstances applied to their cases.

He also pointed out that the evidence of the appellants concerning their reason for breaking out and escaping was not challenged by the prosecution in cross-examination or rebutted by any contrary evidence put to them.

The Crown Counsel 'Aminiasi Kefu in his final submission stated that the two appellants had been repeatedly put into maximum security for various prison offences under Rule 159 of the Prison Rules and that on 9 February 2002 Tapa'atoutai was put in the punishment cells for swearing and attempting to attack a prison officer.

On 23 January 2003 Lolohea was put in handcuffs in the sunning cell because he was disobedient by shaking the doors of the punishment cells, and he was required to make a statement as to why he was shaking the doors, but he refused. On the same day Tapa'atoutai was put in handcuffs in the sunning cell because he was disrespectful, when he shouted that he wanted to "suck a brain", and he was handcuffed to maintain the peace of the prison.

In his final summing up, Mr Justice Ford said he was satisfied that the appellants, at all material times, were acting under duress, and "accordingly, I uphold the appeals. The convictions and sentences appealed against are quashed."

The judge noted that the basic principle when it comes to the discipline and control of prisoners is that "in spite of his imprisonment a convicted prisoner...…remains invested with residuary rights...… the prison authorities must act in accordance with the ordinary law and do not have unlimited powers over prisoners merely by virtue of their imprisonment."

The judge noted Crown Counsel conceded that the prison offences had not been dealt with in a manner prescribed by Section 30 of Tonga's Prisons Act. This act provided that prison visiting officers may take evidence and examine prisoners in respect of any alleged prison offence and order punishment. "Significantly neither counsel in the present case was able to confirm whether prison visiting officers had ever been appointed under Section 17 of the Prisons Act, which came into operation as long ago as 17 July 1923.

"The appointment of prison visiting officers is governed by Section 17 of the Prisons act and the appointment is made by His Majesty in Council," said Mr Justice Ford.

"I have no hesitation in concluding that the prison offences allegedly committed by the two appellants were never processed in accordance with the procedure prescribed in the Prisons Act and to, that extent, the punishments inflicted were, as Crown Counsel rightfully concedes unlawful."