Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Takoa v Regina [1998] SBHC 124; HCSI-CRAC 16 of 1998 (16 October 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 16 of 1998

BAIA TAKOA

-v-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Criminal Appeal Case No. 16 of 1998

Hearing: 20 August, 1998
Judgment: 16 October, 1998

S. Watts for the Appellant
F. Waleanisia for the Crown

PALMER J.: The Appellant had been arrested by Gizo Police on the evening of the 9th April, 1998 following a complaint received between the hours of 6.30 pm and 7.00 pm. It had been reported that the Appellant and a friend were drunk and acting disorderly at Nusa Baruku; a Kiribati settlement off-shore Gizo. The Appellant and his companion were duly arrested by the Police and taken to the Police Station. At the station somehow, the Appellant managed to escape. He was re-arrested the following day and charged inter alia, for the offence of escaping whilst in lawful custody.

He was arraigned before the Magistrate’s Court on 19th May, 1998 for a total of three charges. Two were subsequently withdrawn and only the one on escaping from lawful custody was maintained.

The Appellant initially entered a guilty plea, but after hearing the facts and the Appellant describing for himself what occurred, the learned Magistrate entered a not guilty plea arid proceeded to hold trial. The Appellant was represented throughout by learned Counsel, Steve Watt.

Mr. Watt raised before the learned Magistrate a question of law. That there had been no lawful arrest by the Police and therefore the Appellant was never in lawful custody. And so when he walked away therefore from the Police Station he had not committed any offence.

It was argued by learned Counsel that the Police did not have power to arrest the Appellant under the circumstances that occurred that night. Whatever power of arrest was exercised that night by police was invalid in any event. He relied on section 18 of the Criminal Procedure Code (CPC) which set out the powers of a police officer to effect an arrest without a warrant.

Before this Court, learned Counsel also argued that even if common law powers of arrest were relied on, the police still do not have powers to arrest without a warrant in the circumstances which applied to this case.

The circumstances relied on were as follows. That by the time police arrived at the scene, the Appellant was no longer causing any disturbance, although it was clear he was very drunk. Paragraph l8 (b) of the CPC therefore did not apply in those circumstances. No offence had been committed in the presence of the police officers who attended the scene.

Learned Counsel also argued that paragraph 18(a) of the CPC also did not apply because the offence alleged was not a cognisable offence (see definition of “cognisable offence” under section 2 of the CPC).

It is important to appreciate that this appeal primarily is based on the premace that the facts as relied on by the Appellant were not in dispute. Unfortunately the transcripts of evidence do not bear this out. I will say more on this later because this does have a direct bearing on the way this appeal is being presented.

THE ISSUE:

The issue this Court has to address therefore is whether the arrest was valid in law or not. It is not in dispute that the police effected an arrest. The question is do they have power to effect an arrest in the circumstances. If so, then that is the end of the matter. If not, it follows the Appellant could not have been held in lawful custody and therefore not guilty of the offence of escaping from lawful custody.

DUTIES OF POLICE OFFICERS:

The duties of police officers are set out in section 21 of the Police Act, No. 6 of 1972:

“21. (1} Every police officer shall exercise such powers and perform such duties as are by law conferred or imposed upon a police officer, and shall obey all lawful directions in respect of the execution of his office which he may from time to time receive from his superiors in the Force or from any other police officer in the same rank as himself but senior in service.

(2) Every police officer shall be deemed to be on duty at all times.

(3) It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists.”

POWERS OF ARREST:

The starting point must be section 5 of the Constitution. This deals with the protection of the right of personal liberty, but indirectly dealing with the situation where a person’s liberty may be deprived. Paragraph (f) is the relevant provision which describes when a person’s liberty may be deprived.

“5.-(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say-

...........

(f) upon reasonable Suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands;”

Section 5(1) makes clear that a person’s liberty is to be deprived only where it is authorised by law. That law is to apply in such circumstances as set out in paragraph (f). It is important to appreciate that section 5 of the Constitution sets out the general structure or framework in which a person’s liberty may be deprived. To get into specifics the law in application has to be identified. One of these laws is the Criminal Procedure Code (CPC).

CRIMINAL PROCEDURE CODE:

The Criminal Procedure Code is one of those Acts which deal directly with the situation described in paragraph 5(1) (f) of the Constitution. It prescribes the situation in which a police officer may arrest without a warrant upon reasonable suspicion or where an offence is about to be committed. Of particular relevance are paragraphs (a) and (b) of section 18. These read as follows:

“Any police officer may, without an order from a Magistrate and without a warrant, arrest-

(a) any person whom he suspects upon reasonable grounds of having committed a cognisable offence;

(b) any person who commits any offence in his presence; ....”

Paragraph (a) above is confined to cognisable offences. A cognisable offence is defined in section 2 as “means any felony and any other offence for which a police officer may under any law for the time being in force arrest without warrant”. A “felony” in turn is defined in section 4 of the Penal Code as “means an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with imprisonment for three years or more;”.

It is clear and cannot be disputed that the offence of escaping from lawful custody (section 117 of the Penal Code) is neither a cognisable offence nor a felony. It is rather a misdemeanour. Paragraph (a) of section 18 of the CPC therefore cannot be relied on.

With regards to paragraph (b), the question is whether any offence was committed in the presence of police officers. This requires an analysis of the facts in this case.

The evidence as adduced however showed that the Appellant was sitting down when police arrived. At page 2 of the transcripts of evidence, the following was recorded:

“Q. When you arrived at Nusa Baruku what was the behaviour of accused?

A. He know someone reported the matter to Police so he was quite (sic).”

No offence thus appeared to have been committed by the Appellant in their presence. Paragraph l8 (b) of the CPC therefore could not be relied on as well under those circumstances.

Paragraph 18(e) of the CPC:

One of the submissions raised against the appeal by learned Counsel Waleanisia was that the Police had power in any event under paragraph l8(c) to effect an arrest without a warrant; in that the Appellant had obstructed the police officers when effecting the arrest. Unfortunately, this overlooked the fact that if the arrest was invalid, then the police officers may be considered as not acting in the line of duty at the said time. In other words, if the police officers do not have power to effect an arrest, it may be argued that in attempting to do so, they were not acting in the execution of their duty. The accused therefore had not committed any offence when resisting arrest.

COMMON LAW POWERS OF ARREST:

Common law powers of arrest form part of the laws of Solomon Islands unless “(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.”

[See paragraph (2) of Schedule 3 to the Constitution].

What are those common law powers of arrest? These include powers to arrest without warrant on a reasonable charge of felony or reasonable suspicion of felony (see Harris’s Criminal Law 20th Edition by H. A. and H. Palmer). See also Kenny’s Outlines of Criminal Law 17th Edition by J. W C. Turner at paragraph 698, the learned Author states:

“Like a private person he may arrest anyone who commits, in his presence, a treason, or felony, or dangerous wounding, and may break doors or use fatal violence if necessary.”

In Russell on Crime 11th Edition at page 733, the same view is expressed; that at common law a constable may arrest a person whom he finds committing a felony, or upon reasonable suspicion that a felony has been committed by the person arrested, although no felony has, in fact, been committed.

The views expressed above are all consistent with and have in fact been encapsulated under section 18 of the CPC; in particular paragraphs (a) and (b).

The learned Author in Russell on Crime (ibid) however, went on to make an interesting observation which I think is quite relevant to this case. At page 733, the learned Author states:

“A constable is not as a general rule entitled to arrest for misdemeanour after it has been committed, whether the offence be fraud, breach of the peace, etc., nor to arrest on suspicion of misdemeanour.

He may arrest any person who in his presence commits a misdemeanour or breach of the peace if the arrest is effected at the time when, or immediately after, the offence is committed, or while there is dander of its renewal, but not after the breach, or danger of its renewal, has ceased. He may arrest or start in immediate pursuit if the misdemeanour is a breach of the public peace. And he may take into his custody persons given in charge to him by persons who have witnessed a breach of the peace if there is dander of its immediate renewal, but not if the affray is over and peace restored.” [Emphasis added]

Where a breach of the peace (this would include misdemeanours) is committed in the presence of a constable, he may effect an arrest without warrant, that is clear from the above passage. It is also clear from the above passage that a constable is not entitled to arrest for misdemeanour or breach of the peace after it had been committed. So where a constable arrives at the scene of the crime after the misdemeanour or breach of the peace had been committed and there is peace, he cannot effect a lawful arrest in those circumstances.

The above passage however seems to include a situation under common law where a constable may be able to effect an arrest without warrant. This is the situation where there is a danger of the renewal of a misdemeanour or a breach of the peace after it had been committed. In such a situation it seems that a constable would have power to effect an arrest without warrant.

The learned Author also appears to have extended this to the situation where the police can arrest a person pointed out by witnesses to have committed a breach of the peace and where there is a danger of its renewal.

In Harris’s Criminal Law (ibid) at page 382, the learned Author also appears to identify a similar power.

“Any person, whether private person or peace officer, may at common law arrest and give into custody-

(i) To stay a breach of the peace which is either being committed in his presence or which he has reasonable Ground to believe will be renewed.”

Is this extension of common law power good law to be applied in Solomon Islands? The first question to ask is whether it is inconsistent with the Constitution? The clear answer must be no. Rather such a power is consistent with the provisions of section 5(f) of the Constitution: “upon reasonable suspicion of his having committed, or being about to commit, a criminal offence ...”

The next question is whether it is inconsistent with any Act of Parliament? Again I find no inconsistency with any Act of Parliament, in particular section 18 of the CPC. Rather, the above proposition is more of an addition or an extension to the powers of the police; but definitely not inconsistent.

I also do not find them to be inapplicable or inappropriate in the circumstances of Solomon Islands and also not inconsistent with customary law.

The conclusion I am left with is that this is good law to be given effect to and is totally consistent with the functions of the Police as set out in section 5 of the Police Act - No. 6 of 1972; that of “... the maintenance and enforcement of law and order, the preservation of the peace, the protection of life and property, the prevention and detection of crime and the apprehension of offenders ....”

THE FACTS OF THE CASE - application.

Is there evidence that supports the application of this law? Between the hours of 6.30 pm and 7.00 pm, a complaint was received by police that the accused (Appellant) was drunk and causing disturbance at Nusa Baruku. On arrival at the scene the police noticed that the accused was quiet and sitting down. But this was obviously because the accused was aware that the police were coming. At page 2, under re-examination the following question was asked:

“Q. When you arrived at Nusa Baruku what was the behaviour of accused?

A. He know someone reported the matter to Police so he was quite (sic).”

The next line of questioning however showed something quite interesting:

“Q. When you arrested him was he willing?

A. He was not willing to accompany us. It was Sgt. Tebitara who spoke to him in language. Then Sgt. Tebitara told us to arrest him. We did, at first he refused.

Q. If you don’t arrest accused what would happened?

A. He would have caused a lot of problem and people got angry with him. And for his own safety.”

The evidence above unfortunately was never addressed and considered in the hearing below. Had that been done, it would have raised the possible argument that there was indeed a real possibility of a renewal of the breach of peace committed by the accused. In the circumstances the police would have been empowered to effect an arrest.

Further, there is evidence which seems to suggest that an offence under section 170 of the Penal Code may also have been committed; for drunk and incapable. In the evidence of PW1 Leslie Simao, page 2, he states:

“When we arrested him he couldn’t walk he was too drunk. His eyes were red and talkative.”

I am not satisfied therefore the appeal should be upheld. There is evidence to show that the police had power to effect an arrest without a warrant in the circumstances before them.

ORDERS OF THE COURT:

Appeal dismissed.

ALBERT R. PALMER
THE COURT.