Singh v Naupoto [2008] FJHC 137; HBC199.2008 (4 July 2008)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Action No. HBC 199 of 2008

BETWEEN:

CHRISTOPHER JOHN SURENDRA SINGH

Plaintiff

AND:

COMMANDER VILIAME NAUPOTO
1st Defendant

THE ATTORNEY GENERAL
2nd Defendant

THE STATE
3rd Defendant

Coram: Hickie, J

Dates of Hearing: 27 June and 1 and 2 July 2008

Counsel: Mr S Sharma for the Plaintiff
Mr G Bai for the Defendants
Dr S Shameem as Amicus Curiae
Date of Decision: 4 July 2008

DECISION

BACKGROUND

[1] This is an application where the Plaintiff is seeking:

"1. A declaration that the directive issued on or about February 2008 by the First Defendant that the Plaintiff’s name be placed on a travel ban list preventing the Plaintiff from travelling out of Fiji infringed the Plaintiff’s rights to –

(a) freedom of movement, including his right to leave Fiji, guaranteed by section 34 of the Constitution (Amendment) Act 1997.

2. A declaration that the prohibition on the Plaintiff’s leaving Fiji imposed on or after February 2008 by the First Defendant infringed the Plaintiff’s freedom of movement, including his right to leave Fiji, guaranteed by section 34 of the Constitution (Amendment) Act 1997.

3. An injunction restraining the First Defendant, whether directly or indirectly, and whether by himself, his officers, servants or agents or otherwise howsoever, from interfering with the Plaintiff’s personal freedom to leave the Republic of the Fiji Islands, to ender the Republic of the Fiji Islands and to move freely throughout the Republic of the Fiji Islands.

4. An injunction restraining the Defendants, whether directly or indirectly and whether by themselves, their officers, servants or agents or otherwise howsoever, from interfering with the Plaintiff’s personal freedom to associate with any person of his choosing, whether in Fiji or abroad.

5. An order that the Defendants pay the Plaintiff general damages for personal anguish, mental distress, public humiliation, injury to reputation, loss of opportunity and/or loss of enjoyment and exemplary damages.

6. Such further or other relief as shall be just.

7. An order that the Defendants pay the Plaintiff’s costs on full indemnity basis"

[2] In an Affidavit sworn on 11 June 2008, the Plaintiff admits:

(a) That he obtained loans and advances from Strategic Air Services Limited (SASL) and its holding company, Lawedua Trust Company Limited (LTCL) totaling $13,600.00 which were arranged by the former Managing Director of SASL, Mr Watisoni Nata, and secured by the Plaintiff giving SASL an assignment of his Colonial Life Health Policy;

(b) That the plaintiff is aware that investigations have been taking place since 2006 in respect of the alleged fraudulent misuse of SASL funds by its Accountant, Ms Sheetal Padaiya and that as part of this investigation the actions of the former Managing Director of SASL, Mr Watisoni Nata also came under scrutiny including loans advanced to the Plaintiff;

(c). That on or about 20 February 2008, the Plaintiff was interviewed by the Police in connection with the said loans and advances;

(d). That since 20 February 2008 the Plaintiff has made contact with the Investigation Officer on numerous occasions (in excess of 20) but no further advice has been given to him;

(e). That the Plaintiff and his family had arranged to migrate to the United States of America and whilst arranging relocation he became aware that a "Stop Departure Instruction" had been made by the Department of Immigration on the request of the Police against the Plaintiff;

(f). That, in the meantime, the Plaintiff’s wife and child have relocated to the USA on the 1 March 2008 and the Plaintiff is required by the terms of his visa to enter the USA no later than the 10 July 2008 otherwise his visa will

expire.

[3]. The Plaintiff then filed an urgent Application seeking Constitutional Redress which was returnable last Friday, 27 June 2008. Counsel for the Defendant advised from the Bar Table that he had been instructed that a Brief of Evidence was being sent that day from the Police to the Director of Public Prosecutions for consideration.

[4] The matter was put over until Tuesday, 1 July 2008, to allow the Defendant to file any documentation in response.

[5] Two affidavits were filed by the Defendants on 30 June 2008:

(a) The first, by Inia Tueli, the current Acting Managing Director of SASL; and

(b) The second, byDetective 999 Aminiasi Cula of the Criminal Investigation Department Headquarters, Suva.

[6] Having read the entire file overnight on Monday, 30 June 2008, I then directed the following morning on Tuesday, 1 July 2008, for the Civil Registry of the High Court to send a letter by facsimile transmission at 8.00am that morning to the Proceedings Commissioner of the Fiji Human Rights Commission (FHRC) inviting her to attend and appear as amicus curiae in the matter.

[7] The Director of the FHRC attended that morning and it was confirmed that the Court was not seeking the Commission to intervene but purely to appear as amicus curiae to assist as to the law. It was noted, however, that before doing so, that the FHRC had received a complaint from the Plaintiff in relation to the matter and it first needed to be resolved that day whether the Commission was proceeding to investigate the complaint before they could appear as amicus curiae. The Proceedings Commissioner was excused until the following morning to resolve that issue and in the meantime Counsel for the respective parties continued and made their submissions before the Court.

[8] Counsel for the Plaintiff then explained to the Court that the Plaintiff’s wife won a visa in the "green card" lottery allowing the family to reside and work in the USA. When travel arrangements were being organised, the Plaintiff first became aware that he was on a travel ban "watchlist" following a request from the Police to the Department of Immigration. Despite the Plaintiff having contacted the Police on numerous occasions he had been none the wiser as to what was happening with the matter. As the Plaintiff had not been charged and time was of the essence in relation to his departure for the USA as it was a condition of his visa that it must be "taken up" by 10 July 2008, he wrote to the Commissioner of Police as well as the Minister for Home Affairs and Immigration on the 14 and 22 May 2008 respectively explaining his predicament but received no response. This left the Plaintiff with no alternative but, due to the urgency of the matter, to apply to the Court seeking Constitutional Redress.

[9] Counsel for the Plaintiff submitted in support of his application as follows:

(a) That the Defendants had filed two short affidavits: The first, was an Affidavit from the Acting Managing Director of Strategic Air Services where in effect,

he was saying that SASL ran a credit union for the benefit of its employees and it was the credit union policy that only members were entitled to loans and benefits. The second Affidavit was from the Detective who was appointed in 2006 as the investigating officer in relation to the alleged misappropriation of company funds in SASL. In that regard, the Detective had interviewed the Plaintiff on the 20 February 2008;

(b) That Annexure "F" to the Affidavit sworn by the Plaintiff on 11 June 2008 is a letter dated 1 August 2007 from Inia Tueli of the Lawedua Trust Ltd & SASL. This is the same person who swore on 29 June 2008 the first Affidavit filed by the Defendants on 30 June 2009 in relation to these proceedings. The letter of 1 August 2007 made no mention of any alleged wrongdoing by the Plaintiff and/or Police investigation but simply stated –

"...I note that your Colonial Life Insurance Policy has been with the former Managing Director of SASL (Watesoni Tabaki Nata) as security from early 2004.

I also learnt that your loan repayments were made on an ad hoc basis to Watesoni Tabaki Nata but without proper receipts being presented to you that could have led to these amounts not properly accounted for or may be misused by the Managing Director then of SASL.

Since the termination of SASL/AFL ATM Contract on November 16 2006, the Lawedua Trust Company Limited (LTCL) the holding company has taken over all company responsibilities of SASL and part of that is debt collection.

LTCL on behalf of SASL therefore requests that the following amounts be paid within 3 months to clear your debts with the company"

(c) That the Plaintiff is not the one under scrutiny but it is in fact Watesoni Nata, the former Managing Director of SASL. The person who made the affidavit sworn on 29 June 2008 alleging that the Plaintiff "is being investigated for obtaining money from our credit union without following the correct procedures and laid down requirements thereof" was the same person who had previously been telling the Plaintiff on 1 August 2007 to repay his loan;

(d) That the Plaintiff has clearly outlined in paragraphs 8 and 9 of his Affidavits that the investigations in relation to the alleged fraud centre around two people – the former Principal Accountant, Sheetal Padaiya and Managing Director, Watisoni Nata and that just because the Plaintiff had had dealings with Mr Nata did not mean that the Plaintiff had committed any offence;

(e) That the allegation in paragraph 5 of Mr Tueli’s Affidavit explains what is the allegation against the Plaintiff:

"THAT it is known to me that Christopher John Surendra Singh, a former employee with the Department of Public Enterprise and Public Sector Reform, who is not a member of our SASL Credit Union is being investigated for obtaining money from our credit union without following the correct procedures and laid down requirements thereof."

(f) Thus the allegation is that loans had been provided without following correct procedures but that is not fraud and, in fact, his Colonial Life Policy had been provided as security for the loans and this had been acknowledged by Inia Tueli in his letter of 1 August 2007 to the Plaintiff;

(g) That the Plaintiff was not even told or aware that he was on a "Watchlist" until he was making travel arrangements to go to the USA;

(h) That if you look at the Plaintiff’s Affidavit and then compared it with the two Affidavits filed by the Defendants, not one paragraph has been denied in either of the Defendants two Affidavits.Thus, the Plaintiff’s Affidavit must stand as unchallenged evidence.

(i) That Section 34 of the Constitution in relation to the Freedom of Movement states at 34(3) –

"Every citizen, and every other person lawfully in Fiji, has the right to move freely throughout Fiji and the right to leave Fiji."

(j) That this investigation started in 2006 and it is now mid 2008 and still nothing has happened. The Plaintiff was interviewed by Police in February 2008 and despite "following up" in letters to Police and Immigration, he has received no response. Immigration is in charge of movement overseas. He needs to be charged and then the Court will decide on his travel ban as a condition of Bail, but otherwise should be free to leave Fiji pursuant to section 34(3) of the Constitution.

(k) That in relation to s.34(7) of the Constitution, it is only applicable if he is charged. The problem is that the matter has not reached that stage. He has not been charged so he should be free to leave and in that regard the Police and Defendants should be agreeing to a Consent Order in similar terms to that granted in the matter of Vinesh Kumar (which included the same three Defendants) (Civil Action No. 89 of 2008) wherein the following was agreed:

"1. THAT the First Defendant shall immediately remove the Plaintiff’s name from the Immigration Department’s watchlist so as to enable the Plaintiff to travel overseas unimpeded.

2. THAT the First Defendant undertakes not to place the Plaintiff’s name on the Immigration watchlist except in accordance with an Order of the Court.

3. THAT the Plaintiff’s [sic] withdraw its action ... with liberty to reinstate on seven days notice.

4. THAT there will be no Order as to costs."

(l) That Counsel conceded the wide nature of the orders sought in the Notice of Originating Motion and that he was now seeking prayer number 2 only in the prayers for relief that is –

"A declaration that the prohibition on the Plaintiff’s leaving Fiji imposed on or after February 2008 by the First Defendant infringed the Plaintiff’s freedom of movement, including his right to leave Fiji, guaranteed by section 34 of the Constitution (Amendment) Act 1997."

In addition, the Plaintiff was seeking the following Order:

"THAT the First Defendant shall immediately remove the Plaintiff’s name from the Immigration Department’s watchlist so as to enable the Plaintiff to travel overseas unimpeded."

[10] Counsel for the Defendants submitted in response as follows:

(a) That if one looks at Annexure "F" to the Affidavit of the Plaintiff, that is, the letter of 1 August 2007, Lawedua is a parent company and SASL is a subsidiary. The Policy procedures were not followed;

(b) That paragraph 9 of the Affidavit of Detective Sergeant 999, Aminiasi Cula states that different money transactions as well as loan were being investigated, and were raised in the Plaintiff’s interview with the Police although he was not given a copy of the interview (Counsel conceded that the Plaintiff should have been given a copy of his interview and also noted that he did not have a copy of the interview to tender to the Court);

(c) That Annexure "A" of the Affidavit of Detective Cula contains a copy of the memorandum dated 12 February 2008 sent from the Director Criminal Investigation Department to the Director Immigration Department requesting for the Plaintiff to be put on a watchlist for alleged fraud involving $10,200.00. Counsel for the Defendant conceded after argument put by Counsel for the Plaintiff that this was the reason the Plaintiff was placed on the watchlist;

(d) That the reason Inia Tueli as the Managing Director of the Lawedua Trust Company was writing to the Plaintiff as also the current Acting Director in the SASL was that the credit union had by then been wound up. Although Mr Tueli was not actually involved in the in the credit union during the alleged fraud, he was a member of the credit union and aware of its policies;

(e) That in relation to s.34 of the Constitution, whilst the Defendants concede that there is right to Freedom of Movement this needs to be read in conjunction with s.34(6)(a)(i) which says:

"(6) A law, or anything done under the authority of a law, is not inconsistent with the rights granted by this section to the extent that the law:

(a) provides for the detention of the person or enables a restraint to be placed on the person’s movements, whether:

(i) for the purpose of ensuring his or her appearance before a court for trial or other proceedings"

(f) That the Defendants are restricting the Plaintiff’s movement overseas but not in Fiji.

[11] The Human Right Commission in its submissions pointed to a number of constitutional provisions and legal cases to assist with "the approaches that can be taken in a case of this type" as follows:

(a) Constitutional Provisions

(i) That Section 23(1) states that a person must not be deprived of personal liberty except "e" if the person is reasonably suspected of having committed an offence;

(ii) That Section 34(3) states that every citizen and every other person has the right to move freely throughout the Fiji Islands and the right to leave the Fiji Islands;

(iii) That the above two sections must be read together for consistency and clearly if a person is suspected of having committed an offence their personal liberty can be deprived and their right to freedom of movement can be restricted;

(iv) That Section 34(6) and 34(7) deal with the restraints that may be placed on movements and whether a person is being deprived of their liberty because they have been reasonably suspected of having committed an offence and need to be restrained for the purposes of ensuring their appearance before a Court and whether that is justified in the factual circumstances. As the Commission has noted if cumulative answer to this questions is in the affirmative then the person’s freedom of movement is not violated by the restraints placed on their movements.

(b) Case Law

(i) Miranda v Arizona (384 US 436 (1996) whether a person is in custody even though they not under formal arrest that is "whether a reasonable person under the same circumstances believes he or she was free to leave";

(ii) Russell Newman v The State of Texas (Texas Court of Appeals third District, at Austin No. 03-00-00010-CR) where the Court of Criminal Appeals "identified at least four general situations that may constitute custody, inter alia (1) when the suspect is physically deprived of his freedom of movement in any significant way, (2) when a suspect is told by a law enforcement officer that he cannot leave, and (3) when law enforcement officers create a situation that would leave a reasonable person to believe that his freedom of movement has been severely restricted (4) when probable cause to arrest exists and law enforcement officers do not tell the suspect that he is free to leave ... For the first three situations, the suspect’s freedom of movement must be restricted to the degree associated within an arrest as oppose to an investigative interrogation";

(iii) Ram v the Director of Immigration (HBC0001 of 2006, 18 January 2006, Singh J) where his Lordship stated at page 3 that "for one year now, no charges have been laid (against the applicant) .... A year’s delay is a considerable delay";

(iv) Sunderjee Brothers Ltd v Coulter ([1987] FJCA 3; [1987] 33 FLR, 8 October 1987) where the Court of Appeal "dismissed an application seeking a warrant to arrest the Respondent on the ground that he was to abscond from the jurisdiction without paying a debt of $3,175.00 for which the Appellant had issues a writ against him" as been inconsistent with the Constitution. This was however prior to the 1997 Constitution and in particular section 23(1)(c) and 2.

(c) Conclusion

The case of Ram shows that the freedom of movement of a person suspect of having committed a criminal offence cannot be restrained for a year while charges and proceedings are contemplated. The Commission is not aware of any cases which have indicated the exact time period within which charges must be laid so that freedom of movement is not violated. It is in the public interest that a person suspected of having committed a criminal offence be brought before a court of law without undue delay. There is also the question as to whether a person is in de facto custody because his freedom of movement is restrained in terms of the Newman rule.

[12] As Gibbs CJ noted in Williams v R [1986] HCA 88; (1986) 161 CLR 278 at page 283: "Many cases in Australia have established that there is no power to detain a citizen merely for the purpose of questioning him". In Williams, after being arrested for a couple of matters, an accused was then held in custody for further questioning in relation to other possible offences before being formally taken the following day before a magistrate charged with many other matters. Argument, ensued as to what was meant by the applicable statutory provisions that an accused "should be brought before a justice as soon as was practicable" and that delay was not excused simply because police wished to exhaust their line of questioning. As Mason and Brennan JJ, both also later Chief Justices of the High Court of Australia, said in the same case at pages 292-297:

"The right to personal liberty is, as Fullagar J. described it, "the most elementary and important of all common law rights" (Trobridge v. Hardy [1955] HCA 68; (1955) 94 CLR 147, at p 152). Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" (Commentaries on the Laws of England (Oxford1765), Bk.1, pp.120-121, 130-131).

... The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. King C.J. in Reg. v. Miller (1980) 25 SASR 170, in a passage with which we would respectfully agree (at p 203) pointed out the problems which the law presents to investigating police officers, the stringency of the law's requirements and the duty of police officers to comply with those requirements -a duty which is by no means incompatible with efficient investigation. Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly struck ... But the striking of a different balance is a function for the legislature, not the courts. The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the armoury of law enforcement ...

The rule adopted in the Australian cases was not followed by the English Court of Appeal in Dallison v. Caffery [[1965] 1 QB 348 at 367]. In that case, Lord Denning M.R. decided that the time had come to ensure that justice might be done not only to the person arrested "but also to the community at large".

... In Reg. v. Clune, McGarvie J. said, at p 21, "(t)here has been a want of enthusiasm for Dallison v. Caffery in Australia" and in Jones v. Harvey (1983) 1 MVR 111, at p 119, Mahoney J.A. noted that:

"There may well be, in this area of the law, a difference of principle or of approach between the English law, as illustrated in Dallison v. Caffrey, and the Australian decisions."

... In our respectful opinion, the observations of Lord Denning M.R. in Dallison v. Caffery ought not be followed. They are at odds with the speech of Lord Porter in John Lewis & Co.Ld. v. Tims (1952) AC 676, at p 691:

"Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence."

[13] Although the present case, is somewhat different to Williams and other associated cases concerning arrest, the general principles remain the same. Indeed, in the present case, the Applicant has not in fact been arrested or charged, but he has still, in effect, had his liberty affected. He is not free to leave the country. In addition, the provisions of the 1997 Constitution make clear that he has that right save where a restraint is imposed to ensure his appearance before a court – but as yet he has not been charged. The problem is an investigation has now been underway since 2006, and since he was interviewed in February 2008, he has not been charged. It is now 4 July 2008 and all the Court has been told is that a Brief of Evidence was forwarded last Friday, 27 June 2008, to the DPP for consideration. There is not even a copy of the transcript of interview to point to the Court as to any admissions and/or probable offences allegedly committed by the Plaintiff. Courts need to be extremely wary of limited Affidavit evidence as well as submissions in the form of "quasi-evidence" given from the bar table. The Dr Haneef case in Australia from 2007 is a case in point both the initial criminal proceedings which were withdrawn as well as the subsequent immigration proceedings cancelling his visa: see report in the Sydney Morning Herald of 27 July 2007, "Haneef released as charges dropped",

http://www.smh.com.au/news/general/haneef-to-get-visa-back/2007/07/27/1185339230498.html : and Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (21 August 2007); Minister for Immigration Citizenship v Haneef [2007] FCAFC 203 (21 December 2007); Minister for Immigration Citizenship v Haneef [2007] FCAFC 209 (21 December 2007).

[14] As the Human Rights Commission have noted in their helpful submission: "It is in the public interest that a person suspected of having committed a criminal offence be brought before a court of law without undue delay." As to what is reasonable is another matter. It is clear that despite numerous calls (as well as two formal letters to explain his predicament and the need to leave the jurisdiction), over the period from February 2008 until the appearance in court last Friday, 27 June 2008, the Plaintiff had received no answers and, in effect, has had to "bring the matter to a head". In this regard, I agree with the comments of Justice Singh in Ram v the Director of Immigration (supra):

"It is for the state in the present proceedings to show that the power it seeks to exercise is legitimate exercise of governmental power. Once a person has shown or facts reveal that prima facie a right has been infringed, it is for the state to justify the infringement of the right on balance of probability and not for the "victim" to exclude all factors of justification. The onus of justification rests on the person who violates or infringes the right ... If the defendants cannot move along with any proceedings, then this court shall permit the plaintiff to move on with his life."

[15] In relation to the onus of proof which was carried by the State, it is important to recall the words of Justice Dixon (as he then was) in the High Court of Australia in the case of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, when he stated at p.362:

"But ‘reasonable satisfaction’ is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

[16] Whilst the court appreciates the time constraints under which the Defendants had to file the two Affidavits in opposing the Plaintiff’s Originating Motion because correct procedures were allegedly not followed in relation to loans given to the Plaintiff does not mean that it is a criminal offence. In addition, the Affidavit filed by the Investigation Officer does not make clear in any specific detail the allegations against the Plaintiff arising from investigations. Having regard to what the Defendants had filed compared to the full and frank Affidavit filed by the Plaintiff surely the onus which is upon the Defendants has not been discharged. In addition, the words of Dixon J still ring true today exactly 70 years later "reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences".

[17] There is nothing untoward as to why the Plaintiff seeks to leave the jurisdiction. It is simply for what he perceives will be a better life for his family and, in particular, his child who suffers from Autism for which there is far better treatment overseas. The Plaintiff’s wife won a green card lottery. They are now using that stroke of luck to endeavour to create a better life not to escape the arm of the law. In addition, no persuasive argument has been put before this Court as to why the Plaintiff’s constitutional right to freedom of liberty should be infringed.

[18] In addition, the Court notes that the Plaintiff’s counsel was prepared to settle the matter on the basis that the Plaintiff’s name be removed from the watchlist and there be no order as to costs. Further, if the Police wish to charge the Plaintiff before he departs that is a matter for them.

[19] Accordingly, I declare that the plaintiff’s constitutional right of freedom of movement has been infringed and I order that he be allowed to leave Fiji. The Court wishes to record its thanks to the assistance provided at extremely short notice by the Proceedings Commissioner of the Human Rights Commission and her staff.

[20] Thus the formal Orders of this Court are as follows:

1. A declaration that the prohibition on the Plaintiff leaving Fiji imposed on or after February 2008 by the First Defendant infringed the Plaintiff’s freedom of movement, including his right to leave Fiji, guaranteed by section 34 of the Constitution (Amendment) Act 1997.

2. That the First Defendant shall immediately remove the Plaintiff’s name from the Immigration Department’s watchlist so as to enable the Plaintiff to travel overseas unimpeded.

The Court will now hear the parties as to costs.

Thomas V. Hickie
Judge

Solicitors:

Patel & Sharma Lawyers, Barristers & Solicitors, Suva
Office of the Attorney General
Fiji Human Rights Commission