Cawaru v Tuinakelo [2007] FJHC 124; Civil Action No.67.2005 (2 March 2007)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. 67 OF 2005

Between

IOWANE CAWARU
Plaintiff

And

1. INOKE TUINAKELO
2. DIVISIONAL POLICE COMMANDER NORTHERN
3. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. A. Sen for the Plaintiff
Mr. H. M. Rabuku for the Defendants

Date of Judgment: 2.3.2007

JUDGMENT

On 28 October 2005 by Writ of summons the plaintiff Iowane Cawaru of Nakama, Savusavu, farmer sued the defendants Inoke Tuinakelo (DI), a Police Officer, Divisional Police Commissioner Northern (D2) and the Attorney General of Fiji (D3), claiming damages arising out of alleged injuries suffered by him for an alleged assault by the Police Officer Inoke Tuinakelo (D1) and a civilian when the plaintiff went to Savusavu Police Station to lodge a report of disturbance and harassment by some drunkard youths on 15 March 2003 at Hot Springs Hotel.

In support of his claim the plaintiff (PW1) himself testified and he called witnesses Dr. Joeli Taoi (PW2), Hotel Supervisor Ian Richard Lilo (PW3), a security officer Sosiceni Sovaki (PW4), a farmer Ilaitia Nadova (PW5) and Dr. Rajeev Patel (PW6).

For the defence evidence was given by a part-time security Officer Joseva Camenaiese (DW1) and a chef Lino Kulanikoro (DW2).

Plaintiff’s case

The plaintiff’s case is that on 15 March 2003, he went to Savusavu Police Station, with his friend Sociceni Sovaki (PW4) to lodge a complaint against certain youths who were allegedly harassing him at Hot Springs Hotel.

At the desk at the Station the Police Officer, Inoke Tuinakelo (D1) was there with a civilian Ilaitia Nadova (PW5) who was sitting outside the Station.

The D1 refused to take down his report when the plaintiff ‘threatened’ that he would come back in the morning and refer the matter to his superior. When he was about 20 meters away from the Station the D1 called him and arrested him. No reason for his arrest was given.

The plaintiff gave an account of the assault on him by D1 and the said Ilaitia. He said that he was pushed into the Police cell and he was punched by Ilaitia. The plaintiff fell to the floor. He was kicked by D1 on the jaw and on the side of his ribs.

He said that there was blood on the floor. The plaintiff suffered great pain as the result of injuries received from the assault. He complained about this to the Police Officers and requested to be taken to the Hospital. Although he was attended to by a doctor in the Police cell and advised to be taken to the hospital, he was not referred to a doctor at the Savusavu Hospital.

The report of his assault appears in the Station Diary of 17 March 2003 at 9.45am. He was taken to Labasa Court on 17 March 2003. On his release he was taken to Savusavu Hospital where he was examined and admitted.

The plaintiff tendered to Court the Medical Officer’s report which contains detailed account of his condition and the injuries he received. A specific finding was that the plaintiff had sustained fracture of ‘mandible’ and he was treated and taken as an in-patient.

The plaintiff testified that after his discharge from Savusavu Hospital he had to be on liquid diet for several weeks and thereafter moved on to soft diet. It took him four months to get back to normal diet. Throughout this period he suffered great pain and suffering from the injuries he received.

He said that he could not attend to his farm and suffered loss thereby.

The plaintiff was examined by Dr. Taoi (PW2), a doctor of 50 years experience, at Savusavu Police Station at about 9.00 pm on 15 March 2003. The medical examination was requested by the plaintiff’s father David Manohar Lal. He found that the plaintiff was in severe pain and had difficulty in speaking. He was given medication. The doctor recommended that the plaintiff, because of his condition, should not have been detained in Police custody but should have been taken to hospital.

Another witness Dr. Rajeev Patel also testified on the plaintiff’s condition after familiarizing himself with the plaintiff’s folder and with the report by the attending doctor, Doctor Jone Wagalevu who is now based at CWM Hospital, Suva.

A detailed account of the injury on the plaintiff appears in the Medical Report (which is an exhibit). The plaintiff had fracture of mandible etc. He was treated by tying up the two bones of the jaw together. The wound was cleaned up and wires were inserted from the gum from one end to the other end of the mandible and the wires were tied together to the jaw in place. This was a painful procedure as the wires had to be inserted into the gum. The doctor also stated that the healing period of the bones is approximately three to four months.

The plaintiff also called Sociceni Sovaki (PW4) as his witness. He was with the plaintiff on the night of 14th March 2003. He said that some of the youths challenged the plaintiff for a fight but he avoided them and went to his home. When at 3.00am the plaintiff went to Savusavu Police Station to lodge a report, the D1 refused to do so and abused him. When the plaintiff was walking away, he was arrested by D1. Also when he was inside the Police Station he was assaulted by the said Ilaitia. When the plaintiff fell to the ground he was kicked by D1 on his jaw and on his side. This witness was declared hostile by the learned defence counsel as what he was testifying was different from the statement he gave to Police earlier.

The witness Ian Richard Lilo (PW3) said that although there was a fight, he did not see any punch land on the plaintiff. He said that at the Police Station Ilaitia was there. He saw Ilaitia punching the plaintiff on the face. Then the plaintiff was put in the cell.

Defendants’ case

The defendant (D1) did not testify as he has resigned from the Police Force and is no longer in the country.

The defence witness Joseva Camenaiese testified that a fight was going on at the Hotel and he brought the plaintiff out of the crowd. He said that one of the youths punched the plaintiff and he was injured on left side. There was some bleeding but not much. The plaintiff was going down the road towards the Hotel with about 20 boys ‘attacking’ him.

The DW2 (Lilo) testified that there was a fight but she did not see any injury on the plaintiff. He was running down the slope with the boys chasing him. She did not see anyone punching him.

Issues

The issues for Court’s determination are as follows (as stated in the defendants’ counsel’s written submission).

1. Was the plaintiff assaulted by the 1^st defendant with assistance from a civilian when he was at Savusavu Police Station on 15 March 2003?

2. Did the plaintiff sustain injuries in the course of assault?

3. Were injuries on the plaintiff pre-existing?

4. What was the length of detention?

5. Was the arrest and interrogation of the plaintiff lawful/unlawful?

6. Did the 1^st defendant act out of spite and malice to keep the plaintiff in custody?

7. Was the plaintiff provided with food, medication while he was detained and in custody of the 1^st defendant at Savusavu Police Station?

8. Has the plaintiff suffered any pain, suffering or loss?

9. If the answer to the above question is in the affirmative, then what is the quantum of pain and suffering?

Consideration of the issues

Upon a careful analysis of the evidence before me, I accept the testimony of the plaintiff in regard to material particulars.

The witnesses who testified for the defence in regard to the alleged incidents at Hot Springs Hotel, did not say that they saw the plaintiff assaulting anyone or directly taking part in the alleged flight that was going on.

I find as a fact that, if anything, the plaintiff was running away from the alleged scene at the Hotel. I find as fact that there was no injury on the plaintiff when he went to the Police Station with another to lodge a report. For some reason there was quarrel at the Hotel. What part the plaintiff played in the fight is far from clear.

I further find as fact that the injuries which the plaintiff received were as a result of the assault on him at the Police Station at the hands of the said Police Officer (D1) and a civilian who was there. In this regard I accept the plaintiff’s testimony and that of his witness. The Police Officer (D1) who is no longer in the Police Force or in the country was not called to testify for the defence.

The said Sosiceni PW4 testified, that he was with the plaintiff on the night in question. He corroborated the testimony of the plaintiff. He testified that the plaintiff was assaulted by Ilaitia who punched him and went away. The plaintiff fell to the ground and he saw the D1 kick the plaintiff on his jaw and on his side. This witness who turned hostile to defence is a witness of truth and I accept his evidence in toto, and as Counsel states this witness’s evidence gave a death blow to the defence case.

As far as defence witness Ilaitia’s evidence is concerned, it is most unreliable and biased. He is married to a Police Constable and is unemployed and lives in the Police Compound. He did say that the plaintiff did not have any difficulty ‘communicating with his mouth’ when he came to lodge a report. I reject his testimony altogether as being untrue which contradicts the two doctors’ evidence.

Also going by the two doctor’s evidence that because the plaintiff had a broken mandible he would have had enormous difficulty in communicating when he was at the Police Station to lodge a report. But this was not so but the injury that was inflicted on him came about when he was kicked on his jaw by D1 when he was on the ground and before he was put in the Police cell.

I find that the nature of injuries suffered by the plaintiff were as stated by the two doctors.

Dr. Taoi found the plaintiff was in severe pain and he had difficulty in speaking. He also said that he should not have been detained and held in police custody but taken to hospital because of the nature of his injuries.

Dr. Patel said that the plaintiff had a fracture of the ‘mandible’. The treatment given was that the two bones of the jaws were tied together and wires were inserted which was a painful procedure. He said that the healing period is approximately three to four months.

The two doctors’ evidence has gone unchallenged by the defence.

It is also clear from the evidence and I do so find that the plaintiff was unlawfully detained in the Police Station from 3 am of 15 March 2003 until 17 March 2003 when he was taken to Labasa Magistrate’s Court. The alleged charge laid against the plaintiff which allegedly arose at the Police Station was dismissed by the Labasa Magistrate’s Court. It has not been disclosed by the defence the reason for the detention in the Station and what was the nature of evidence to charge the plaintiff. The conduct of the police (D1) was outrageous and totally inconsistent with his responsibilities as a Police Officer.

Claim for damages

The plaintiff is claiming damages for breaches of his constitutional rights under sections 23, 25, 27(1) and 27(3)(b) of the Constitution of Fiji. He says that he was deprived of his freedom from 3 a.m. on 15 March 2003 to midday 17 March 2003. He was subjected to both ‘inhumane’ and ‘emotional torture’ and assaulted. Under s27(3)(b) a person has to be brought before a Court not later than 48 hours after his arrest “or, if that is not reasonably possible, as soon as possible thereafter.” In this case there was no indication why the plaintiff was put in the cell. No bail was considered by the Police in Savusavu. He was not taken to Labasa Court until 17 March. He was detained for more than 48 hours without considering bail.

The plaintiff’s claim is based on wrongful imprisonment and deprivation of his liberty bestowed under section 25 and 27(1) of the Constitution, breach of Constitutional rights under s27(3)(b) for being detained for 3 days and nights and assault and battery that resulted in shock, injury and mental anguish.

In considering the award of damages, I have to examine the circumstances which led to the plaintiff’s arrest allegedly for being drunk and acting in a disorderly manner and violently resisting arrest. He was subsequently charged.

From the scanty evidence that I have before me, it is in evidence the alleged criminal charges were dismissed against the plaintiff. However, I do not completely rule out the possibility that the plaintiff’s behaviour was somewhat unruly as well but that was not a justification for him to be handled in the manner he was and detained for a long period. However, the major complaint against the Police Officer is that the plaintiff was brutally handled causing injuries referred to hereabove. There was no justification for infliction of injury of this nature thus violating the plaintiff’s fundamental rights under the Constitution.

On damages for unlawful imprisonment, the learned counsel for the defendants Mr. Rabuku referred to some useful guidelines. Here the plaintiff was detained for a longer period than he should have been for reasons best known to the Police Officer who assaulted him.

In Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; (1997) 3 WLR 403 the Court of Appeal suggested the following principles as guidelines in wrongful arrest and imprisonment cases:

1) The total award should not exceed what is a fair compensation for the injury the plaintiff has suffered.

2) Exemplary damages will only be awarded in exceptional cases

3) The starting point for normal wrongful arrest and imprisonment cases is £500 for the first hour and £3000 for 24 hours on a progressively reducing scale for each day thereafter.

4) Awards for damages for false imprisonment should bear same relationship to awards for personal injuries.

The law on false imprisonment is well settled. In Dumbell v Roberts and Others (1944) 1 All E.R. p326 Scott L.J at p.329 on this aspect stated that:-

“The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited.”

Later he said:

“The British principle of personal freedom, that every man should be presumed innocent until he is proved guilty, applies also to the police function of arrest in a very modified degree, it is true, but at least to the extent of requiring them to be observant, receptive and open-minded and to notice any relevant circumstance which points either way, either to innocence or to guilt.”

These principles are enshrined in the 1997 Constitution but for some reason these have been ignored by the Police Officer.

The law and principles applicable to damages for breach of rights under Chapter 4 (Bill of Rights) of the Constitution have been dealt with at length by the Court of Appeal in The Proceeding Commissioner, Fiji Human Rights AND The Commissioner of Police and Attorney General of Fiji (Civil Appeal No. ABU0003 of 2006S - judgment 24.11.06).

There at p9 it is stated, referring to cases, that the ‘preponderance of opinion favours the public law remedy’ approach and the fact that the remedy is also discretionary supports this view.

Also in Manga v Attorney General [2000] 2 NZLR 65 Hammond J stated at 81 that:

“cases based upon violation of the Bill of Rights are about vindications of statutory policies which are not ‘just’ private; they have overarching public dimensions.”

The functions and duties of Police are stated in sections 5 and 18 to 26 of the Police Act. It is accepted that it is their duty, inter alia, to detect and suppress crime. “However their powers of detention, arrest, questioning and charging those in respect of whom reasonable cause for suspicion exists, must be exercised within the framework of the Bill of Rights and any legislation permitted under the Constitution.” (Proceeding Commissioner’s case supra p11).

On compensation I refer to the New Zealand High Court, Wellington case of Christopher Hapimana Ben Taunoa & Others v Her Majesty’s Attorney-General for New Zealand on behalf of the Department of Corrections & Others (CIV 2002 485-742 - judgment 2.9.04). There Young J makes reference to certain cases on compensation and stated at p12:-

“[14] The Court of Appeal in Simpson v Attorney-General [Baigent’s case][1994] 3 NZLR 667 dealt with compensation for Bill of Rights breach, firstly in considering remedy Casey J at p682 said:

I am satisfied that the purpose and intention of the Bill of Rights Act is that there be an adequate public law remedy for infringement obtainable through the Courts...

And in considering quantum of monetary awards Cook P said at p678:

As to the level of compensation, it would be premature at this stage to say more than that, in addition to any physical damage, intangible harm such as distress and injured feelings may be compensated for; the gravity of the breach and the need to emphasise the importance of the affirmed rights and to deter breaches are also proper considerations; but extravagant awards are to be avoided.

And Hardie Boys J at p703:

In the assessment of the compensation, the emphasis must be on the compensatory and not the punitive element. The objective is to affirm the right, not punish the transgressor. I agree with the observations of the President as to quantum...”

There have been cases in our Courts on breaches of the provisions of the Constitution on Bill of Rights [Epeli Seniloli and Another v Semi Voliti (BHA No. 33/99) Mohammed Kasim v Commissioner of Police and Others (HBC No. 471/99) and Avinash Singh v Jofiliti Turaga & Others (HBC 267/98)].

In Josaia Vakacobo v The Commissioner of Police CA HBC 195/98 the Court awarded $4000 to a plaintiff wrongly detained by police for six days.

In this case I am satisfied that the plaintiff was imprisoned for longer period than justified if it was justified at all. Before being imprisoned he was badly assaulted resulting in the fracture of the mandible. I assess and award damages in the sum of $2000.00 (two thousand dollars) which I consider is a fair compensation.

On the plaintiff’s claim for loss of earnings, I find that there is insufficient evidence to properly assess damages. All I have is that he is a farmer and he could not attend to his farm while recovering from the injuries sustained for 3 to 4 months. No doubt he must have suffered some loss and doing the best I can I award him $1000.00 (one thousand dollars) by way of damages.

By way of general damages including ‘pain and suffering’, I assess damages at $10,000 (ten thousand dollars).

In summary the award of damages is as follows:

False imprisonment	$ 2000.00
Loss of earnings	$ 1000.00
General damages (including pain and suffering)	$10,000.00
	$13,000.00

In the exercise of my discretion under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap 27 I award interest on the above sum of $13,000.00 at the rate 4% per annum from date of injury i.e. 15 March 2003 to date of trial i.e. 26 October 2006 which amounts to $550.00 (five hundred fifty dollars).

The total award of damages is therefore $13,550.00 (thirteen thousand five hundred fifty dollars) for which judgment is entered against the defendants for that sum together with costs the sum of $1000.00 (one thousand dollars).

D. Pathik

Judge

At Suva
2 March 2007