Yogendran v Chand [2004] FJHC 411; HBC0403.2001L (26 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0403 of 2001L

BETWEEN:

YOGENDRAN
Plaintiff

AND:

SHREE CHAND, MAHESH AND NAVIN
1st Defendants

AND:

COMMISSIONER OF POLICE
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI
3rd Defendant

Counsel for the Plaintiff: Mr. Haroon A. Shah
Counsel for the Defendants: Ms. S. Tabaiwalu

Date of Hearing: 29 March 2004
Date of Judgment: 26 April 2004

JUDGMENT

The Claim

The plaintiff by Writ of Summons seeks damages for injuries allegedly sustained as a result of the actions of the 1^st defendant whilst the plaintiff was being questioned at the Tavua Police Station between the 31^st October 2000 and the 2^nd November 2000.

The plaintiff claims that he suffered a fracture of the 6^th, 7^th, 8^th and 9^th ribs together with the tenderness, swelling, bruising and cuts to the inside of his mouth.

The court has been asked by the parties to determine liability only.

Background

On the 31^st of October 2000, a complaint was lodged with the Tavua Police Station that a bullock had been stolen. As a result of this complaint, the plaintiff was brought to the Tavua Police Station for questioning and is alleged by the plaintiff that during the course of being questioned he was assaulted by the 1^st defendants which assault resulted in the injuries being sustained.

Upon being bailed at court on 2^nd November 2000, the plaintiff immediately attended the Tavua Police Station and lodged a complaint with respect to the injuries and alleged assault. The plaintiff was then referred for medical examination and X-ray.

The defendants did not deny the injuries as alleged by the plaintiff but defend the proceedings on the basis that those injuries was sustained by the plaintiff when he fell entering his home whilst being escorted by the police in the night. It is alleged that he fell on three steps having a height of about 3 feet.

The Evidence

The plaintiff’s sworn testimony is that the defendant police officers attended his home at about 7.00pm on the 31^st October 2000. At that time the plaintiff had commenced his prayers and the police officers agreed they would wait until those prayers were completed. The plaintiff says he was aware of the time, as there was a wall clock in the room in which the prayers were being said. The prayers were being said in the company of the plaintiff’s mother and other people.

The plaintiff’s evidence is that after about 5 minutes he concluded his prayers and was then handcuffed by the police officers, placed in the back of a van and conveyed to the Tavua Police Station where he continued to be handcuffed and was questioned with respect to the stolen animal.

His evidence is that he was handcuffed to a steel bar and left alone whilst the police officers went off. He says he was in a large room but without access to a toilet and was not given any meals or other sustenance.

After about 1 to 1 ½ hours the police officers returned and rearranged the handcuffs so that the plaintiff was handcuffed with his hands behind him and it is at that time he says the police officers commenced hitting him. He says there was one officer by his side and two in front of him slapping his face and punching him, which resulted in blood coming out of his mouth. As a result, he was taken into a room where he was allowed to wash his mouth out and on return he was hit in the front of his body and on the right side of his body in the area of his ribs. He says that all three officers hit him one after the other and that the assault took place over 2 to 2 ½ hour period.

During the period of the assault, the police officers continued to ask the plaintiff about the stolen animal and he continually denied having any involvement in the alleged offence. He was then taken to his home at which time he says he could not walk due to the pain. He was taken in a van and was left on the outside of his home. He called out to his mother who opened the door and the police officers went inside and removed a quantity of money from the drawer in his bedroom and then returned to the police station where they commenced taking a record of interview from the plaintiff, between 12.00 and 12.30am. He is unsure of the time it concluded but he thinks it was between 1.30 or 2.30am.

He gives evidence that he received no meals to this point in time and asked for soup. He asked for soup as it was something he thought he could eat due to the injuries to his mouth but no food was given to him. He says that on the 1^st November at about 8.00am he was taken from his cell to the bure where he was fingerprinted and given a cup of tea which he was unable to drink and after about an hour he was returned to his cell. He says that on return to his cell, the pain was unbearable and he asked to be taken to hospital and the officers refused. Again, he says no food was given to him during the day or in the evening.

On Thursday morning, 2^nd November 2000, he says he had no breakfast and he was taken to court that morning where he was granted bail and with the assistance of his mother went to the Tavua Police Station and lodged a complaint with respect to his injuries. After completing the form he was then taken to hospital by his mother, examined and given a letter to go to Lautoka Hospital for X-rays. These X-rays were carried out on the following day due to some difficulties associated with the operation of the equipment.

The plaintiff denies that he fell on the steps at his property and says that there are three steps having a total height of about 3 feet.

No other evidence was given on behalf of the plaintiff apart from the tender of two documents.

Exhibit P-1 was a copy of the X-ray report, which shows “fractured 6^th, 7^th, 8^th and 9^th ribs on right” and is dated 3^rd November 2000.

Evidence was given on behalf of the defendants, by each of the three defendants and two station personnel. The defendants all denied the allegations and gave varying versions of the events with some inconsistency as the time and also with some inconsistency as to the duration of certain events.

Constable Shree Chandra, the officer in charge of the investigation was most unconvincing in the evidence that he gave to the court. Notwithstanding his 15 years experience in the Police Force, he appeared to be extremely nervous and uncertain and at times declined to answer questions asked in cross examination, necessitating directions from the court that he do so.

He says that they waited for half an hour for the plaintiff to conclude his prayers and that they left the plaintiff’s house at around 9.00pm, arriving at the police station around 9.15pm and then leaving the police station at about 10.15pm to go to Vatukoula to collect the allegedly stolen animal and then upon return to the police station they conveyed the plaintiff to his home at around midnight to obtain the money from his drawer and further that the caution interview commenced at about 1.30am and concluded at about 3.00am when the plaintiff was placed in the cell.

The officer produced no notebook or other records that might show what occurred when the plaintiff was taken to his home in the middle of the night. He gives evidence that the plaintiff fell on the steps on entering the house but nothing more.

Similar but slightly inconsistent evidence was given by other officers.

The only records produced on behalf of the defendant were the Station Diary and the medical report.

The medical report states that the injuries therein described being the pain over the right ribs and tenderness and laceration of the inside of the lower lip; “could have been caused as narrated”. The X-ray carried out subsequent to the medical examination confirmed, as is stated above, that the 6^th, 7^th, 8^th and 9^th ribs on the right hand side were fractured.

The Station Diary, Exhibit D-1, contains the details of the time that certain events took place between the 31^st October and 2^nd of November 2000. Two entries were omitted and were later inserted. No notebook or other records were tendered to corroborate the oral evidence of the defendants. In particular no police records were produced to evidence any notation having been made as to the plaintiff having fall and injured himself. Yet all three officers could give identical evidence as to the place and nature of the fall that allegedly occurred, notwithstanding, that they were unable to give such precise evidence with respect to the other events of the night of the 31^st October 2000.

Conclusion

On the balance of probability, I am satisfied that the evidence given by the plaintiff is more credible than that given by the three defendants and accordingly I find that the plaintiff sustained a fracture to the 6^th, 7^th, 8^th and 9^th ribs on the right hand side and a cut in the inside of the lower lip whilst in police custody at the Tavua Police Station between 31^st October and 2^nd November 2000 and further that such injuries were sustained as a result of a deliberate assault upon him by the 1^st defendants. It follows therefore that the defendants are liable on the plaintiff’s claim for damages.

Orders of the Court

1. Verdict for the plaintiff;
   
2. Defendant to pay the plaintiff’s costs;
   
3. Proceedings to be listed for assessment of damages in the event the parties unable to agree.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
26 APRIL 2004