IN THE COURT OF APPEAL OF TONGA				 
CRIMINAL JURISDICTION						
NUKU’ALOFA REGISTRY

AC 8 of 2024
[CR 65 of 2023]

BETWEEN 			
TU’IFUA ANGILAU 
Appellant

AND 				
REX
Respondent
				
Hearing:			
5 May 2025

Court:				
Randerson, Harrison and Morrison JJ 	

Counsel:			
David Garrett SC for the Appellant
Joe Fifita for the Respondent		

Judgment:			
16 May 2025

JUDGMENT OF THE COURT
Background 
[1] Tu’ifua Angilau appeals against his conviction after a trial without a jury.  On 5 March 2024 Langi J found him guilty on one count of possessing illicit drugs contrary to s 4(a)(iii) of the Illicit Drugs Control Act 2003.  Mr Angilau ‘s notice of appeal raised two grounds.  The first relates to the procedure adopted by police when the appellant was arrested, and the second relies on fresh evidence.  
[2] We can address the second ground in short order. It alleged that the trial Judge’s verdict was based on the wrongful acceptance of evidence that the illicit drugs were found in Mr Angilau’s car when he was first apprehended.  Mr Angilau’s notice of appeal alleged that after his conviction he learned that the drugs were planted by another person at the direction of the senior police officer in charge of his arrest. As this issue was never raised at trial, we granted an adjournment of the hearing of this appeal on 12 November 2024 on the strict condition that within 21 days Mr Angilau must file and serve an application to adduce fresh evidence with supporting affidavits. Mr Angilau has failed to comply.
 [3] Accordingly we confine ourselves to the first ground of appeal which is that, upon arrest, Mr Angilau was not informed of the fact that he was under arrest and was not told the nature of the offence for which he was arrested.

Supreme Court
[4] Section 115 of the Tonga Police Act provides as follows:
“115 Arrest without warrant
(1)	A police officer, without a warrant, may arrest a person whom the police officer believes, on reasonable grounds – 
(a)	is committing an offence;
(b)	is about to commit an offence; or
(c)	has committed an offence.
(2)	The police officer may, without warrant, enter any property, vessel or vehicle to make an arrest.
(3)	The police officer shall inform the person – 
(a)	that he is under arrest; and
(b)	of the nature of the offence for which the person is arrested.”
[5]    Mr Angilau submits that the trial judge erred in law by not considering the defence submission below that s 115(3) was not complied with.
[6]    Mr Angilau did not give evidence at his trial.  However, the police evidence was challenged as being unreliable and inconsistent in various respects.  One issue below was whether the police had power to conduct a search of Mr Angilau’s car without a warrant (ss 122 and 123 of the Tonga Police Act).  In relation to this issue, the trial judge accepted the evidence of Officer Vi. The trial judge accordingly found that the police did have grounds to search without a warrant.  There is no appeal from this finding.
[7]    The Reasons for Verdict outline the police evidence which the trial judge accepted.  Relevantly here, this was that police received reliable information that Mr Angilau was travelling around a particular area in his car selling illicit drugs.  Officer Vi put a team together to intercept and detain him.  When Mr Angilau realised that police were driving their cars in the vicinity of his, he made various manoeuvres in an attempt to get away from the police cars.  
[8] Eventually police blocked Mr Angilau’s vehicle, so that he could no longer drive it. He stopped his car and remained seated in the driver’s seat. At this point the police announced, “Police with weapons” and instructed Mr Angilau to put his hands up.  He did not comply with their request but, still seated in the car, bent forward.  When the request to put his hands up was repeated, Mr Angilau put his hands behind his head.  Officer Hanisi could see that he had something in one of his hands.  When Officer Vaka approached the car Mr Angilau put his hands behind his head, apparently around the head-rest of the driver’s seat. Officer Vaka forcefully removed Mr Angilau’s hands from the head-rest and proceeded to handcuff him. While the car was still at the scene Officer Hanisi noticed two small plastic packets of white powder on the floor behind the driver’s seat.  Mr Angilau was put into the back seat of the car, on the passenger side (not the driver’s side) and taken to the police station.  
[9] The primary judge’s Reasons for Verdict then record:
“19.	When they arrived at the Longolongo Police Station Officer Kailomani took the Accused outside of the vehicle.  He informed Officer Fifita that there were two packets of white powder on the floor of the passenger side behind the driver’s seat.
20.	Officer Fifita then informed the Accused as to why he was being arrested and the powers of the police under section 12 of the Police Act.  He was also told of his rights to remain silent and not to answer any questions asked of him.
21.	A body search was then conducted on the Accused by Officer Feinga who confirmed that there was nothing on his body.  Officer Feinga then proceeded to search the Accused’s vehicle and started on the right side of the vehicle behind the drivers’ seat.  When he opened the door he saw two small packets of methamphetamine.  He informed Officer Fifita and continued his search of the vehicle.
22.	Officer Fifita asked the Accused about the two plastic bags of white powder and the Accused denied any knowledge of the drugs.”
[10]   Langi J made a finding of fact that Mr Angilau was told why he was being arrested before any searches were undertaken and before police attempted to obtain any information from him.  This finding was not challenged on appeal.  It was in accordance with the only evidence on the topic, the evidence of Officer Fifita.  His evidence on this point was not challenged in cross-examination.  
Appeal
[11] The Crown’s preliminary argument is that Mr Angilau is precluded from raising a complaint that he was not informed in accordance with s 115(3) at the roadside because the proposition was not put to any of the prosecution witnesses in cross-examination.  This was said to be a breach of the rule in Browne v Dunne.  We reject this submission, there was no need to cross-examine on the point – the prosecution evidence–in-chief revealed the failure to comply with s 115(3) at the roadside.
[12] Alternatively, the Crown argued that Mr Angilau was not arrested on the roadside, but arrested at the police station, and that therefore s 115(3) had been complied with.  In these submissions for the Crown, a distinction is sought to be made between arrest and apprehension.  It was argued that although Mr Angilau was apprehended at the roadside, he was not arrested then because it was only after police formally searched him and his car at the police station that they had reasonable grounds to believe he had committed an offence; it was then that he was told that he was arrested for possessing an illegal drug.  
[13] This submission must also be rejected.  It is confused, legally and factually.  Factually, the trial judge found that Mr Angilau was told that he was under arrest before the search, that is, the police did not form a suspicion only after the search, see above.  Legally, there is no basis for the distinction sought to be made between arrest and apprehension.  At the roadside Mr Angilau’s car was stopped and he was put in handcuffs; he was taken out of the driver’s seat of his car, put in the back seat, and driven to the police station.  There can be no doubt that Mr Angilau was under arrest at the roadside: he was not accompanying police voluntarily, he was being compelled; Mr Fifita accepted that he was no longer a free man.
[14]   As Mr Angilau was arrested at the roadside, the police had a duty to comply with s 115(3) at that time.  The trial judge found that they did not do so but waited until they had taken him to the police station before complying. It does seem that the trial judge failed to determine the point raised by Mr Angilau below, which was that because of the non-compliance with s 115(3) the police evidence should be excluded. We accept his submission that failing to determine this point amounts to an error of law – s 16(a) Court of Appeal Act.
[15]   That gives rise to a consideration of whether this Court is of the view that, as a consequence of this error of law, the verdict below should be set aside either because of the error per se, or because the error has resulted in a miscarriage of justice – s 17(1) Court of Appeal Act.  
[16]	The terms of s 115(3) are mandatory.  The relevant question is what the trial judge ought to have found followed from non-compliance with its terms. Mr Angilau did not argue below, and does not argue on this appeal, that the arrest at the roadside was unlawful, and we cannot see that such a conclusion is open on the evidence.  At the time of the roadside arrest police did have a reasonable belief in terms of s115(1): they had received information that Mr Angilau was selling drugs in a particular area; when they attended that area Mr Angilau was present and made serious attempts to evade them; he refused to obey their directions to put his hands up; police saw two small plastic bags that appeared to contain drugs in his car
[17]   Mr Angilau submits that non-compliance with s 115(3) of the Police Act meant that                the police evidence against him was “tainted and should have been excluded by the trial judge”.  However, we cannot see that this submission is made out on the facts in this case.  
[18]   Although Officer Hanisi noticed the packets of drugs in the car at the roadside, there was no formal search of Mr Angilau or his car until arrival at the police station, after the police had belatedly complied with s 115(3).  Further, there was no evidence that Mr Angilau gave the police any information, or co-operated with police in any way, either at the roadside, or at the police station.  The case is not one where, for example, after a failure to comply with s 115(3), the detained person made admissions or gave information to the police which assisted the police in their enquiries.  
[19]   On the facts in this case, there was no possibility of a causal connection between the failure to comply with s 115(3), and the evidence which police obtained after they complied with s115(3) and executed searches at the police station.  It was solely a timing issue. There is no evidential basis for inferring that the result would have been any different if Mr Angilau had been expressly informed that he was under arrest and of the nature of the charge at the roadside rather than shortly afterwards at the police station. On these facts the timing and location of the search and questioning could not have prejudiced his rights. We reject the submission that the evidence led by the Crown was therefore tainted and should have been excluded by the trial judge, had she determined the question raised by counsel for Mr Angilau at the trial. 
[19]    In our view therefore, while there has been an error of law demonstrated in the reasons of the trial judge, Mr Angilau has failed to show that there was any possibility that the error affected the remainder of the trial judge’s reasoning or caused a miscarriage of justice.  
Result
[20] The appeal must be dismissed.

Randerson J

Harrison J

Morrison J