A Nuku'alofa bar owner has lost an Appeal in the Nuku'alofa Supreme Court against the decision of a Magistrate who declared that Tonga Police had lawfully entered the Billfish Bar premises.

Lord Chief Justice M. H. Whitten KC in a Judgment on 4 August affirmed the decision of Senior Magistrate Kaufusi dated 31 May 2023.

He stated that Section 70 of the Intoxicating Liquor Act provides that a Constable may enter licensed premises in performance of duty.

The Appellant, Robert Guy Sullivan, is the licensee of the Billfish Bar in Nuku'alofa.

The Court was told that on 17 March 2023, around 9:00 p.m., two uniformed Police Constables, Senituli and Mafi, entered the Billfish. There were around 80 to 90 patrons inside.

“The Appellant asked them why they were there. Constable Mafi is alleged to have said that they were there as part of a patrol and that it was their duty, as Police officers, to check the property and health and safety of the people in it. The Appellant is alleged to have then said to Constable Mafi "who the f..k are you to come to my apartment".

“As a result, the Appellant was arrested, during which he is alleged to have kicked Officer Senituli in the stomach and tried to wriggle free. The Appellant was later charged with swearing at an officer and obstruction contrary to ss 57 and 113 of the Criminal Offences Act.”

Magistrate's Court

In the Magistrates Court, the Appellant has contested the charges. The trial of the matter commenced before Senior Magistrate Kaufusi. The Appellant raised a preliminary issue that the Police entered the Billfish without lawful authority, that the remaining evidence, taken at its highest, could not support a conviction, and therefore the proceedings should be dismissed.

On 31 May 2023, after considering affidavits of witnesses filed by the parties and their written submissions, the Magistrate determined that the Police entry into the Billfish was lawful. As a result, the Appellant's application to dismiss the proceedings in the Magistrate's Court was refused.

Appeal to Supreme Court

The Appellant appealed against that decision and submitted that the Magistrate erred. Among other things, he claimed that “as the Police had no competent legal authority to be at the Billfish, the charges that emanated from their unlawful entry are incompetent and should be set aside.”

The Respondents submitted that, the Appellant's grounds of appeal may be condensed to a question as to the lawfulness of the entry by the Police officers and whether s 70 empowered them to enter the Billfish, and therefore that the Police officers were entitled, at any time, to enter the Billfish for the purpose of preventing or detecting violations of the Act which it was their duty to enforce.

In his ruling to affirm the Magistrate's decision, the Lord Chief Justice considered that the appellant had not demonstrated any discernible error of principle or approach by the Magistrate...“the Respondent's submissions are to be preferred, and the appeal must therefore be dismissed.”

“The [Appellant's] submission also fails to appreciate that most often, and in the absence of intelligence from within the premises, it will not be until Police officers have entered licensed premises that they will be able to ascertain whether, and if so, which provision of, the Act is being or may be contravened,” the Lord Chief Justice said.

Counsel for the appellant was Mr T. 'Aho, while Mr J. Lutui DPP appeared for the Respondent Tonga Police.