Rokotuiviwa v Seveci [2008] FJHC 221; HBC374.2007 (12 September 2008)

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[1] The Plaintiff in this matter works as a “loader/porter” at the bus deport in NAUSORI and resides in NASINU. He has also been a missionary worker with the All Nations Christian Fellowship for some 20 years. These simple details as to his identity will become important later in this judgment.

[2] The Plaintiff’s story is of a middle aged religious man who had never been inside a cell being wrongly arrested upon the basis that he carried the same name as that of a person wanted for an outstanding enforcement warrant. Despite protestations as to his innocence, the Police arrested and detained him for some 22 hours forcing him to be held overnight in an overcrowded cell without a mattress, a pillow or blanket and doubtful whether it met acceptable sanitary and Occupational Health and Safety (OHS) conditions. Upon their error being verified sometime mid-morning the following day, the Police did not immediately release the Plaintiff, rather, they detained him for approximately three more hours without explanation and eventually released him without even offering him an apology.

[3] Upon release, in his bewildered state (not able to stomach anything to eat in the situation in which he found himself) all the Plaintiff could do was thank the Police for at least not assaulting him. And the Defendants point to this as some sort of evidence of their defence to his claim. That a member of the community (who has never been held in a cell before) thanks the Police for not assaulting him or her whilst in custody says much about the misconceptions held by some members of the general public as to what takes place “as the norm” when one is held in police custody in the Fiji Islands – perhaps fuelled by a number of high profile cases over the past decade and surely a matter of concern for the Police. (See for example: Singh v Commissioner of Police, (Unreported, High Court of Fiji at Lautoka, Civil Action No.HBC267 of 1998, 22 February 2002, Byrne J); Prakash v Commissioner of Police, (Unreported, High Court of Fiji at Suva, Civil Action No.HBC2377 of 1998, 13 October 2004, Singh J); Cawaru v Tuinakelo & Ors, (Unreported, High Court of Fiji at Labasa, Civil Action No.67 of 2005, 2 March 2007, Pathik J) (Paclii:[2007] FJHC 124, http://www.paclii.org/fj/cases/FJHC/2007/124.html); Yogendran v Chand & Ors (Unreported, High Court of Fiji at Lautoka, Civil Action No.HBC403 of 2001, 12 April 2005, Finnigan J) (Paclii: [2005] FJHC 707, http://www.paclii.org/fj/cases/FJHC/2005/707.html); and Mani v Kumar & Ors (Unreported, High Court of Fiji at Labasa, Civil Action No.HBC70 of 2005, 17 July 2007, Byrne J.))

[4] As I have recently written elsewhere (see The Commissioner of Police, Fiji Police Force v A Mother and Her Child, Unreported, High Court of Fiji at Suva, Appellant Jurisdiction, No. HBA 8 of 2008, 27 August 2008, Hickie J), it is important to remember, however, that such issues related to law enforcement are not isolated to the Fiji Islands. Rather, they are an ongoing problem throughout the world in both democratic and non-democratic countries alike and, as such, require the executive to provide regular reviews of, as well as appropriate levels of funding to, the Police so that they have the resources to undertake the necessary training to continually develop a modern, professional force, as well as for their actions to be overseen by an ever vigilant independent judiciary sitting in open courts with their decisions reported in a transparent media. In this regard, I have made some recommendations at the end of this judgment.

[5] Finally, the case again highlights the need to keep the publication of the Fiji Law Reports up-to-date (which were last published with judgments from eight years ago but will shortly recommence publication) as well as for ALL cases before the superior courts in this country being listed on Paclii so as to be available to members of the public through the internet. Publication not only shows the determination of the courts to deal with such cases be they in Suva, Lautoka, Labasa or elsewhere, but also provides the public with the confidence in having their police force being held to account by a transparent and open judiciary.

[6] On 7 June 2006, the Plaintiff was at the minibus station which departs from Nausori to Korovou where he works as a “loader/porter” on the buses. I add in passing, that to use as a job description the term “loading boy” I consider as inappropriate, particularly, as it can have overtones of a “put down” of both a racist and sexist nature from a bygone era. The Plaintiff is a middle aged person and should be respected as such. I will, therefore, be referring to him as a “porter”.

[7] About 4.00pm, during the afternoon of 7 June 2006, the Plaintiff left from where he was working at and went to the Nausori Police Station. He says that he did so, because he had heard from one of his fellow workers that the Police were looking for him. The Police say that he was arrested elsewhere and taken back to Nausori Police Station

[8] Upon arriving at the Police Station, the Plaintiff claims to have met the SERGEANT SEVECI TAVAGA (“SERGEANT SEVECI”) who told him that it was good that he had come to the Police Station.

[9] The Plaintiff further alleges that SERGEANT SEVECI then told him that he was supposed to be in Korovou Prison at that time because of a warrant issued from a case at Nausori. The Plaintiff allegedly replied: “I told him I haven’t been in a case in Nausori and never been locked in a cell.”

[10] Apparently, SERGEANT SEVECI explained that the reason the Police were looking for the Plaintiff was “Seveci told me that I touch one police woman”. This was clarified as “indecent assault of a police women”.

[11] When the Plaintiff tried to explain it was not him, SERGEANT SEVECI showed him the warrant and “asked for my name and I said ‘my name is Paula Rokotuiviwa’”. Then SERGEANT SEVECI “told me that I was going to be locked in the cell”.

[12] Before being put in a cell, the Police told the Plaintiff to take off his belt and watch, “after that then they lock me inside the cell”. This was approximately 4.00 pm.

[13] The Plaintiff alleges that he had on a prior occasion told the Police that he was not the person implicated in this Warrant when they had previously tried to enforce it mistakenly against him:

“I already told the Policeman Corporal Ananaiasa when they already came and took me before that the Policewoman that was touched and one Paula came and told me that it was not me ...

He also alleges that he told SERGEANT SEVECI on this second occasion of his arrest:

“I told Seveci that I was brought here earlier regarding the same case and the same police woman who was the victim said it was not me.”

“Q Were you meant to say there was an earlier arrest by the Police on the same case in which the victim confirmed that you were not the same person?

[14] The Plaintiff claims he was then locked in a cell from a little after 4p.m. on the afternoon on the 7 June 2007 and remained in a cell until he was identified by the victim mid-morning of the following day but not released until mid-afternoon.

[15] Soon after his release, the Plaintiff wrote a letter of complaint dated 23 July 2007 to the Office of the Ombudsman (Exh “D1”, “Doc. 1”).

[16] Subsequently, a letter dated 2 November 2007 was also sent by Ms Filimoni Daveta, Complaints & Resolutions Officer, for Acting Director, Fiji Human Rights Commission, to the Commissioner of Police, Fiji Police Force, concerning the matter together with a copy to the Plaintiff (Exh “D1”, Doc.2”).

[17] In the meantime, the Plaintiff filed on 20 August 2007 a Writ of Summons and Statement of Claim in the High Court of Fiji at Suva seeking damages for his arrest on a “Warrant of Commitment on a Conviction and in Default of Payment Imprisonment” and for the subsequent delay in his detention at the Nausori Police Station without charge between the afternoon of 7 June 2007 until he was released the following afternoon on 8 June 2007.

[18] The other issue (apart from the unlawful arrest and false imprisonment) was the conditions which the Plaintiff had to endure during his detention.

[19] In his Statement of Claim, the Plaintiff had alleged (at paragraphs 8-9, 11 and 14) as follows:

“8. THAT the Plaintiff was locked in a small cell block along with five other persons and the environment ... was unhygienic, with cell mates urinating and ... only three mattresses available.

11. THAT the Plaintiff spent the night ... tolerating the inhuman condition ...”.

14. THAT the Plaintiff did not use the food provided since he had lost appetite because of the condition of the cell block.”

“Q: What happen after your release, can you explain? Did the police conduct an investigation?

A: The policeman Seveci and his crew took me into one room to investigate what happened and anything I would like to say and I told them it is good they didn’t beat him up. I was weak because I didn’t eat

Q: Now the condition of the cell of which you are being locked up in were you by yourself or other inmates?

Q: And what were you doing when not sleeping – what were you doing in the cell?

Q: From the time of your arrest on 7th June 2007 that was at 1655 hours and you were released on the following day 8/6/07 at 1311 hours – would you agree that you had spent 21 hours in the cell?

Q: Can you explain to the Court how did you feel during your confinement in the cell?

A: By the time I was discharged, my leg and body was weak and I was thinking what has happened to me because another person who did the wrong and I was wrongly confined.”

[21] As to why the identification did not happen immediately the next morning and, also, when it did take place, why the Plaintiff was not immediately released, the First Defendant offered the following explanation in cross-examination:

Q: Is there something you trying to conceal witness? Can you be precise – was it in the morning?

Q: It is within those hours the victim came to identify the plaintiff in the Police cell?

Q: And why he was released some 3 hours later after the victim identified he was the wrong person?

[22] As Counsel for the Plaintiff highlighted in his cross-examination of the First Defendant, once the victim had identified to the Police that they were detaining the wrong person, the Plaintiff should have been immediately released (something
which the First Defendant initially disputed and then finally conceded):

“Q: Do you agree that you are withholding the right of a person in not attending to releasing him forthwith upon identification by the victim?

Q: I know he was released but after 3 hours later after identification, do you agree?

Q: After the victim had identified the plaintiff to be the wrong person you then realise that you’ve made a wrongful arrest on the plaintiff, do you agree?

Q: Do you agree that at the end of the next day in the afternoon the victim has advised you that this is the wrong person – my question is do you agree at the end of the afternoon of the next day after the identification by victim you now realise that you made a wrong arrest of the plaintiff?

[23] To counter the claim “THAT ... the cell did not meet the Occupational Health and Safety Standard”, the Defendants’ called as their second witness SERGEANT ALEKISIO LAWAKELI (“SERGEANT ALEKISIO”). After advising that he had been in the Police Force for 25 years, SERGEANT ALEKISIO noted that he had been stationed at Nausori Police Station in June 2007 as the Acting Station Officer and his duties included looking after the building including the cell block.

[24] In cross-examination (apart from confirming that he gave a statement dated 7 September 2007) which is part of the agreed bundle of documents (Exh”D1”, Doc.6), he was asked as to how he could say that the cell “was clean and it was in OHS compliance”:

Q: Do you agree with me the Ministry which looks after the OHS compliance is the Ministry of Labour?

Q: And they have specialised personnel, trained and equipped with the OHS compliance requirements?

Q: And do you agree that you did not go through this expertise or this training to say that it is within the OHS compliance?

Q: Three days workshop was some basics of requirements not the true nature of the OHS compliance which the Labour ministry personalised in, do you agree?

Q: Do you agree that you are unqualified to confirm that the cell block in Nausori Police Station is OHS compliance?

Q: You said in your examination in chief that the toilet facility are built in the same room in the cell block where the detainees are confined?

Q: And you also agree witness that naturally the nuisance of foul smell and other related nuisance will naturally accessible to the cell block?

Q: And you also agree that at times more than 3 detainees are locked in one cell block when demands warrants?

Q: Upon the release of the plaintiff on the next day you did not asked the plaintiff whether he had any complain to lodge during his confinement in the Police cell block?

[25] At the hearing on 14 July 2008, the Plaintiff mentioned in his evidence the previous occasion of his first arrest on the warrant with specific details as to when this occurred. It was also referred to in the “Agreed Bundle of Documents (Exh “D1”, “Doc. 1”).

[26] In their Statement of Defence filed on 12 October 2007, the Defendants denied the contents of paragraph 5 of the Statement of Claim which pleaded this aspect and submitted that a Bench Warrant had been issued on 15 May 2007 which was executed on 7 June 2007 when the Plaintiff was arrested by SPECIAL CONSTABLE ANANAIASA DRUGU and escorted to Nausori Police Station.

[27] At the hearing, however, SERGEANT SEVECI, gave evidence that it was he who arrested the Plaintiff. SPECIAL CONSTABLE ANANAIASA DRUGU was not called.

[28] Indeed, the “Agreed Bundle of Documents” (Exh “D1”, “Doc. 8 and 9”) (“Abstract of Meal Register” and “Statement Diary Entry” from 7 June 2007 to 8 June 2007) the Police have made the following relevant entries for the afternoon of Thursday, 7 June 2007:

Serial No.	Time	Cross Reference	Entry	Initial and No.
147	1647hrs	150	Sgt Saveci [sic] brought in one Paula Rokotuiviloa [sic] with warrant no.208/07	Obscured as “cut off” by photocopy
150	1655hrs	147	Ref to SD 147 he was searched and locked up by PC Avanai	Obscured as “cut off” by photocopy

[29] The cross-examination of the Plaintiff on the issue of whether he ever made a complaint was thus:

Q: You stated in your examination in chief that you made a complaint to the Police during the period of your detention that you were not the person responsible?

Q: Did you ever recall on that day on the 7th June 2007 that Police Officers came to you in the cell and asked you whether you have any complaint and you did not say anything?

Q: I wish to put it to you that 1.36 a.m. that is the early hour of Friday – I wish to refer to Document 8 and 9 in the agreed bundles of document on Friday 8th June 2007 – entry 13 – the Police checked you in the cell?

A: The other inmates which was also with me in the cell wanted the mosquito coil

Q: Witness I wish to put it to you that you are telling lies? Because the Police visited the cell on that night and you were asleep and you did not make any complaint?

Q: I wish to refer to entry 14 of the same document – Witness again at 2.54 a.m. the Police came to check the cell – witness can you have a look at the document and see entry 13 and 14 – in 13 it says Police personally visit the cell on that night and check you and the rest of the prisoners who were locked up in the cell and again entry 14 the Police came back after they found you and rest of the prisoners asleep?

Q: Witness again on 2.54 on that night the Police also checked you in the cell and you also asleep? Can the witness be referred to entry 19 & 20?

A: All of us in that cell were awake that night because they would want to go out of that cell and trying to speak to anyone and no one was asleep”

[30] Counsel for the Plaintiff did object during the hearing to the above line of questioning saying: “it is quite unfair – it [the Statement Diary Entry] does not mention the accused by name – it was generalised that all prisoners were asleep.” The questioning was allowed. As to whether the Court finds it a correct record and/or what weight it gives to it is another issue entirely.

[31] The Police station diary entries referred to by Counsel for the Defendants in his cross-examination (Exh “D1”, “Doc. 8 and 9”), at 1.36 and 1.38am were as follows:

Serial No.	Time	Cross Reference	Entry	Initial and No.
13	0136Hr	14	I personally left out to check prisoners in the cell.	“cut off” by photocopy
14	1138hr	13	Ref to the above entry, I called back, found the prisoners asleep.	“cut off” by photocopy

Serial No.	Time	Cross Reference	Entry	Initial and No.
19	0254Hrs	14	I personally left out to check prisoners in the cell.	“cut off” by photocopy
20	0255hrs	13	Ref to the above entry, I found the prisoners asleep.	“cut off” by photocopy

(b) That they attended the cells and, in particular, the Plaintiff during the night, at 1.36 and 1.38 am, and then again at 2.54 and 2.55 am.

[33] The first witness for the Defendants to give evidence was INSPECTOR SEVECI TAVAGA (formerly “Sergeant Seveci Tavaga”) named as the First Defendant to this action.

[34] After advising that he has been in the Police Force for 31 years, he recalled that in June 2007 he was involved in a Police operation leading a team called “the strike back” where they had been given the task “to arrest suspects, warrantees”.

[35] One such warrant was for a “PAULA ROKOTUIVIWA late of Nausori” and it was a “Warrant of Commitment on a Conviction and in Default of Payment Imprisonment” and specifically a “Warrant of Commitment for indecently annoying a female” (Exh “D1”, Doc.”7”) The First Defendant was then asked in his evidence-in-chief what did he do upon receipt of that warrant and he explained that he went out with his team “to look for the warrantee” as follows:

A: He has been working as a loading boy and he is also well known character within us

A: He was complaining in the station that the name that was in the warrant is the plaintiff’s name

Q: What cause you to believe that the name in the warrant is the name of the plaintiff?

[36] The First Defendant then gave evidence as to the procedure on receipt of such a warrant and that as it is an order from a Court, their duty is to then look for that person and if Police Officers fail to comply they can be taken to court for contempt of court as well as subject to disciplinary action including “reduction in salary and also dismissal”.

[37] As to why this “warrantee” was not taken immediately upon arrest to Naboro Prison, he explained in his evidence-in-chief:

”A: After he kept on complaining and I went back and look for the victim to come and identify the warrantee

A: The victim came in she said that was not the person even though they have the same name

[38] According to Exh “D1”, “Doc. 8 and 9”, the Police made the following relevant entry for the afternoon of Friday, 8 June 2007:

Serial No.	Time	Cross Reference	Entry	Initial and No.
143	1311hrs	146	SC Ananaiasa released one Paula Rokotuiviwa from the cell instructed by S/O Alekisio.	Obscured as “cut off” by photocopy
146	1320hrs	146	Ref to above report pc Vilikesa was informed.	Obscured as “cut off” by photocopy

(b) That they attended the cells and released the Plaintiff during the afternoon at 1.11 pm and that it was reported and recorded at 1.20 pm.

[40] As noted above, the Defendants’ called as their second witness Sergeant ALEKISIO LAWAKELI who had been stationed at Nausori Police Station in June 2007 as the Acting Station Officer and whose duties included looking after the building including the cell block.

[41] His evidence in chief (apart from confirming that the Plaintiff never complained after being brought in on an outstanding warrant by Sergeant Seveci) was to the conditions of the cell block as follows:

Q: Can you recall on 7th June 2007, can you tell the court the condition of the cell block?

Q: The plaintiff stated that the condition of the cell was unhygienic, cell mates urinating inside cell and he cannot find a place to rest as there were only 3 mattress available? Can you tell the court the reason of such type of unhygienic condition exists in your station?

A: The construction of the cell itself, there is toilet facility within the cell for the prisoners use

Q: According to the plaintiff the condition of the cell block was not OHS compliance, can you tell the court the reason why not in OHS compliance?

A: The building itself the toilet is inside the cell block, it is from the toilet in the cell block

Q: Does the cell block meet the minimum requirement of the maintenance of prisoners?

(a) That there are two cells in Nausori Police Station, that the Plaintiff was put in the second cell and “when he was put in he was the only one”;

(b) That “There has been a clean up in the station prior to his locking and the cell

(d) That due to the construction of the cell, the toilet facility was within the cell;

(f) That was the condition of the cell was OHS complaint (Occupational Health and Safety).

[43] It is quite clear that after the Plaintiff’s arrest and initial detention a conscious decision was made by an unknown person or persons (perhaps the First Defendant) that the Plaintiff was not to be taken forthwith to Naboro Prison on the afternoon of 7 June 2008. The Defendants say that it was because of the time of day.

[44] According to the Defendants the reason to why the Plaintiff was not taken immediately the next day to Naboro Prison was that they were waiting for the victim to come and identify that they were holding the right person.

[45] Further, it is the Defendants’ case that once the Plaintiff had identified by the victim (at time an unknown time of the morning) as not the convicted person for whom the warrant had been issued, the Plaintiff was released, albeit it may have been up to three hours later.

[46] The parties filed at the beginning of the hearing an “Agreed Bundle of Documents” (Exh “D1”). Some of the documents within that bundle have been referred to above. Two others documents within that bundle are relevant to mention:

(a) Statement from PAULA ROKOTUIVIWA (the Plaintiff) dated 15 June 2007, highlighting within a week he had registered a statement at Police “HQ” as to what had happened;

(b) Statement from Special Constable ANANAIASA DRUGU (Nausori Police Station) dated 7 September 2007, confirming that she had arrested the Plaintiff “sometime this year” for an outstanding warrant and taken him to Nausori Police Station where he was identified by the victim “that it is different PAULA ROKOTUIVIWA and he was release [sic] by Cpl Josese”.

[47] Counsel for the Plaintiff tendered a “Character Reference” dated 5 May 2008 from the Reverend EPELI RATABACACA, General Superintendent of the A.N.C.F., in relation to the Plaintiff but no prior notice had been given to Counsel for the Defendants and the maker of it was not called. It was objected to by Counsel for the Defendants. It was accepted into evidence as Exh “P1”. Whether it will carry any weight is another matter.

[48] Counsel for the Plaintiff also tendered a “Schedule of Damages” as had been ordered by the Court when setting the matter down for hearing. It was also objected to by Counsel for the Defendants but no reasons given. It has been allowed but what part it will play in the final result is, again, another matter entirely.

[49] The Constitution allows a person’s liberty to be restrained in circumstances where it is “for the purpose of executing the sentence or order of a court”: s.23(1)(a). This is what the Defendants submit was allegedly taking place in the present case.

[50] Further, section 37(1) of the Penal Code allows a court to order that whereupon previously a conviction has been imposed or in default a period of imprisonment, and in the event that the fine is not paid by a certain date, then for the Court to issue “a warrant of committal” for a term of imprisonment. This is what allegedly happened in the present case when a warrant was directed “To all Police Officers in Fiji and to the Officer-in Charge of the Prison at Suva” that “whereas PAULA ROKOTUIVIWA late of Nausori” was convicted in the Magistrate’s Court at Nausori on 28 January 2008 for “Indecently Annoying Females”, fined $40 and in default one month’s imprisonment, “the said Police Officers” were commanded “to take the said defendant and convey him to prison at Suva and deliver him the Officer-in-Charge who is hereby directed to imprison him for the space of 1 month unless he shall sooner pay ... $56.88” (comprising compensation $40.00, Warrant issuing fee $15.00 and VAT $1.88).

(a) That his client, when arresting the Plaintiff, was just complying with s.17(3) of the Police Act which required him to “obey all lawful directions in respect of the execution of his office” and “promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority;

(b) That his client has immunity from civil prosecution pursuant to s.20(1) of the Police Act as his actions were “done in obedience to a warrant purporting to be issued by a magistrate”;

(c) That in accordance with section 50 of the Magistrate Act, Police Officers are “required to obey the warrants, orders and directions of a magistrate”. In addition, section 65(2) of the Magistrate Act states that “No officer of any court or other person bound to execute the lawful warrants or orders of any such magistrate ... shall be liable to be sued in any civil court for the execution of any warrant or order which he would be bound to execute”;

(d) That in accordance with section 3(5) of the Crown Proceeding Act, the First and Second Defendants were involved in duties which were judicial in nature and thus the Third Defendant is protected from civil action.

[52] In support of their claim to immunity from civil suit (even for unlawful detention), Counsel for the Defendants has cited:

(a) Prasad v Ryland (Unreported, Civil Appeal No.2 of 2007, 25 September 2007, Singh J) (Paclii: [2007] FJHC 95,

Where a Plaintiff who had paid a traffic fine, did not subsequently attend Court whereupon a bench warrant was issued for his arrest which occurred and he was “locked up” for an hour until a receipt was produced. The Plaintiff’s claim for wrongful arrest and deprivation of liberty was dismissed by the Court on the basis that as Police must obey a bench warrant issued by Magistrate acting in their judicial capacity, Police cannot be sued for executing the warrant;

(b) Chand v Narayan (Unreported, High Court of Fiji at Lautoka, HBA0010.2003L (9 September 2005, Connors J) (Paclii: [2005] FJHC 523, http://www.paclii.org/fj/cases/FJHC/2005/523.html):where a Police Office had reasonable cause to believe a bench warrant was in existence against the Plaintiff and so arrested him and brought to the Police Station in accordance with the warrant. A subsequent civil claim was dismissed by the Court on the basis that all the Defendant did was bring the Plaintiff to the Police Station. The Court noted that the Plaintiff should have sued the State as being negligent for other officers at Police Station not making proper inquiries by once Plaintiff was delivered by Defendant to the Station.

(c) Setevano v Attorney-General (Unreported, High Court of Fiji at Suva, Civil No.HBC0119D of 1995, 21 June 1995, Fatiaki J) (Paclii: [1995] FJHC 106, http://www.paclii.org/fj/cases/FJHC/1995/106.html)A malicious prosecution case brought on the basis of an acquittal by the Court of Appeal after a conviction in High Court was dismissed on the basis that judicial immunity applied.

[53] There is a dispute as to whether the Plaintiff freely attended the Nausori Police Station or was arrested elsewhere and was then taken back to the Police Station pursuant to the execution of the warrant.

[54] The Plaintiff agrees that he was searched and locked up but, disputes that he was “brought in” by Sgt Seveci. He said that he freely attended the station.

[55] If the Plaintiff had been arrested elsewhere before being taken to Nausori Police Station (as alleged by the Defendants) then, presumably, the Plaintiff would have disputed with the Police there and then upon his arrest that they had the wrong person, that is, BEFORE they took him into custody and back to the Police Station. It beggars belief that someone would just freely go with the Police and not dispute that this was a case of mistaken identity. In addition, that the evidence of the First Defendant as to how he effected the arrest upon the Plaintiff was so vague, it lends weight to the Plaintiff’s recollection of events.

[56] Further, it is noted that despite it being recorded in the Statement Diary (as set out in paragraph 24 above) that Sgt Seveci had “brought in one Paula Rokotuiviwa”, the author or custodian of the Statement Diary for that afternoon was not called as a witness at the hearing. In addition, PC AVANAI who it was recorded had searched and locked up the Plaintiff was never called.

[57] Whilst the above Police station diary entries have been accepted into evidence, the weight they will be given is another matter. In addition, the Court is entitled to assume that any evidence such person or persons could have given concerning alleged visits during the night would not have assisted the Defendants’ case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[58] In light of the above, and having observed the Plaintiff, as well as the alleged arresting officer, in the witness box, I find that I have no reason to doubt the evidence of the Plaintiff.

[59] Thus, the first finding of the Court is that the Plaintiff freely attended the Nausori Police Station on the afternoon of 7 June 2006.

[60] It is agreed between the parties that SERGEANT SEVECI showed the Plaintiff a copy of a warrant and told him that as the Plaintiff was the person named in the warrant he was now going to be locked up.

[61] It is then disputed what happened next, that is, whether the Plaintiff disputed with the First Defendant that he was the person mentioned in the warrant or just meekly accepted his fate.

[62] There is no doubt that a long serving police officer such as the First Defendant (who said in evidence hat he had been a member of the Fiji Police Force for 31 years) would have been aware of the problems in this country both in the Indigenous and non-Indigenous communities whereby a number of people carrying the same names. As Counsel for the Plaintiff simply put to First Defendant as the arresting officer:

“Q: Do you agree the custom and tradition of Fijian lifestyle you have 3 or 4 people who are related have the same first and second name, do you agree with me?

[63] This is why often on legal documents in this country the name of a person’s father is also included to try and differentiate between individuals and thus reduce potential errors.

[64] Unfortunately, in this case, the “Warrant of Commitment on a Conviction and in Default of Payment Imprisonment” issued from the Magistrate’s Court at Nausori on 5 May 2007 simply said: “PAULA ROKOTUIVIWA late of Nausori” (my emphasis)

[65] Surely, this should have been a warning to an of officer of some 31 years experience to tread carefully and take precautionary steps such as a quick call to the Registry of the Magistrate’s Court at Nausori to check, for example, the warrantee’s address and/or date of birth? Despite it only being 3.00pm in the afternoon, and the Plaintiff claiming “I told him I haven’t been in a case in Nausori and never been locked in a cell”, no telephone call was made. Instead, the First Defendant was sure that he had the right person as he explained in his evidence-in-chief:

A: He has been working as a loading boy and he is also well known character within us

[66] No doubt, if the Plaintiff had resisted he would have been forcefully put in the cell, if not also charged with resisting arrest. Further, that someone has been allegedly “taken in” does not mean that he has ever been charged or found guilty of having committed a criminal offence. Indeed, when the Plaintiff said in his evidence that he told the First Defendant that “I haven’t been in a case in Nausori and never been locked in a cell”, this was not challenged by Counsel for the Defendants. Normally, if a witness is putting their character into evidence, it will be challenged by the other party if this is not correct. The only attempt (if it can be termed so) was an “off hand” statement by the First Defendant that the Plaintiff “has been taken in for sometimes in the Police Station at Nausori” but with no documentary proof tended to the Court as such in support.

[67] As for the possibility of considering other arrangements, particularly where the warrantee was claiming that they had arrested the wrong person, the First Defendant rejected this:

“Q Would there be any other alternative arrangement like putting the plaintiff under police escort without being locked up in the cell while you look for the victim to identify plaintiff – would that be another alternative, would you agree?

Q: And also you will agree that the plaintiff vigorously opposed to being the person implicated on the warrant because he has no case as such and despite of his insistence you locked him in the police cell, restraining his movement, do you agree?

A: We only arrest the person whose name was on the warrantee and that was Paula Rokotuiviwa

Q: I am putting to you that you should have taken steps before locking the plaintiff in the cell to locate the victim and identify the plaintiff before your lock the warrantee up and restrain his rights and movements, do you agree that would be the best alternative?

[68] Thus, the second finding of the Court is that at Nausori Police Station on the afternoon of 7 June 2006, the First Defendant did not arrest the correct person as named in the “Warrant of Commitment” dated 5 May 2007, due to the fact that the First Defendant did not make enquires to check the arrested person’s claim that he was not the person named in the warrant.

[69] Bad enough was it that the Police did not check that they had the right person before locking the Plaintiff in a cell, compounding their error, however, was (as the Plaintiff recounted in his evidence-in-chief) their disinterest in bothering to check the Plaintiff’s claim that evening as they continued to detain him, even after the Plaintiff had made it clear that this mistake had happened once previously:

“Q: Before being taken physically and put in the Police cell did you insist to the police that you were not the person implicated in this Warrant?

A: I already told the Policeman Corporal Ananaiasa when they already came and took me before that the Policewoman that was touched and one Paula came and told me that it was not me

Q: You meaning to say the Policewoman who was involved in this case in which you have alleged to have committed was present to confirm to Seveci that you were not the right person?

A: I told Seveci that I was brought here earlier regarding the same case and the same police woman who was the victim said it was not me

Q: Were you meant to say there was an earlier arrest by the Police on the same case in which the victim confirmed that you were not the same person?

[70] Indeed, (as noted earlier above) supporting the Plaintiff’s claim, there was in the Agreed Bundle of Documents a Statement from Special Constable ANANAIASA DRUGU of Nausori Police Station dated 7 September 2007 (Exh “1”, Doc. 6) confirming that she had arrested the Plaintiff “sometime” during 2007 for an outstanding warrant and taken him to Nausori Police Station where he was identified by the victim “that it is [a] different PAULA ROKOTUIVIWA and he was release [sic] by Cpl Josese”.

[71] When it was put to the First Defendant in cross-examination as to why he did not check this, he explained in this exchange:

“Q I am putting it to you that you would have taken some reasonable step in identifying the true identity by the victim bearing the fact that the victim in this case is a policewoman who can be contacted without difficulty, do you agree?

[72] Apart from the First Defendant’s bald assertion as to this alleged “fact”, there was no other evidence to support this claim such as:

(a) There was no other witness called by the Defendants who was on duty that afternoon/evening to attest to this fact that “We had tried to contact the victim”. Indeed, it was not even mentioned by the Defendants’ second witness;

(c) There was no notation or entry tendered to the Court from the First Defendant’s personal police note book (as the arresting officer) for 7 June 2007 recording this “fact”.

[73] Thus, the THIRD finding of the Court is that at Nausori Police Station on the afternoon of 7 June 2006, the First Defendant, after arresting the Plaintiff, then detained him in a cell from 3.00pm that day without making any prompt attempt to verify the Plaintiff’s claim as to his innocence.

[74] After being held overnight, and even though the police officer who was the victim in the matter was on duty from 8.00 am, the First Defendant appears to have made little attempt to have her urgently attend and verify that the Police were holding the correct person. Indeed, in his cross-examination, the First Defendant gave evidence that he could not remember at what time he called the “Police Officer victim” other than it being between 8.00 am and 12 noon.

(a) That the Police did not want to “promptly” check as soon as possible the next day that they were holding the correct warrantee; and

(b) That although one can appreciate that when the hearing took place just on 12 months from when the events of the Plaintiff’s arrest and detention took place, one would expect that an Inspector of Police would have had a little better recollection such as whether the events occurred early or late morning and perhaps have made a notation in his personal police note book (as the arresting officer) or made a record at least in the Station’s ”Statement Diary Entry”. If this was in fact done by him, it was not tendered in evidence.

[76] In any event, it is unclear as to why the plaintiff was not immediately released once the victim had attended and identified that the Plaintiff was the wrong person. All the First Defendant could say when this was put to him in cross-examination as to why he had waited three hours to do so was: “I was engage in other duties”.

[77] On this issue, Counsel for the Plaintiff was very clear in his cross-examination of the First Defendant that the identification had happened mid-morning and the Plaintiff was then not released until early afternoon, some three hours later:

Q: I know he was released but after 3 hours later after identification, do you agree?

[77] Counsel for the Plaintiff suggested a different scenario for the delay. After the First Defendant conceded that the warrant of commitment in this case had been a “default warrant”, that is, that the person named in the warrant had disobeyed a court order (payment of a fine) and so was to be committed to prison for one month in default, and that in such circumstances “the warrantee is upon his arrest taken straight away to prison”, it was put to him the following:

“Q: Do you agree the reason this sort of procedure did not happen in this case, you are trying to establish the true Paula Rokotuiviwa who has been implicated in this warrant?

Q: Can you explain why he was not taken to the Prison Authorities straight away?

A: The prison authority normally receive prisoners or warrantees before 3.00 p.m. He was taken in before that but then if we are going to take him to Suva Prison it will be late that is why we decided to keep him for the night

Q: You kept the Plaintiff overnight in the Police cell can you give any reason why he was not taken at the early hours of the next morning rather than 1 pm when he was being released?

A: He was still complaining when we went to look for the victim to come and identify that warrantee”

[78] As to why the Police did or did not get the victim to come early the next day to identify whether the Police had arrested the correct person, Counsel for the Plaintiff suggested to the First Defendant a different twist to the story:

“Q: The victim you are talking about is in respect of the warrant – indecently annoying female?

Q: Nakasi Police Station is one which is under the command of Nausori Police Station?

Q: Since the victim is the Police Officer in this case, she has within reach of her contact in times of off-duty, where she lives, her contact is within the reach of Police at Nausori and Nakasi? She can be contacted without difficulty?

Q: Did you make any attempt on the day of the arrest to contact the victim who is a Police Officer? Yes or No?

Q: What action did you take to contact the victim to identify the plaintiff whether he is the right person because of his insistence to be the wrong person arrested?

[79] Interestingly, as the police records show (“Agreed Bundle of Documents” (Exh “D1”), “Doc. 8 and 9” - “Abstract of Meal Register” and “Statement Diary Entry” from 7 June 2007 to 8 June 2007) the entry for the afternoon of Friday, 8 June 2007 “SC Ananaiasa released one Paula Rokotuiviwa from the cell instructed by S/O Alekisio.” If this is the same Special Constable ANANAIASA (DRUGU) of Nausori Police Station who, as she set out in her statement dated 7 September 2007 (Exh “1”, Doc. 6), had arrested the Plaintiff on a prior occasion earlier in 2007 and soon after wards he was released by Cpl Josese when the victim had identified the Plaintiff as the wrong person. Surely, someone would have been aware of the previous error?

[80] As noted above, in their Statement of Defence filed on 12 October 2007, the Defendants denied the contents of paragraph 5 of the Plaintiff’s Statement of Claim which pleaded that he had been arrested on a prior occasion. Instead, the Defendants submitted, that a Bench Warrant had been issued on 15 May 2007 which was executed on 7 June 2007 when the Plaintiff was arrested by SPECIAL CONSTABLE ANANAIASA DRUGU and escorted to Nausori Police Station.

[81] Also as noted above, at the hearing, SERGEANT SEVECI gave evidence that it was he who arrested the Plaintiff and SPECIAL CONSTABLE ANANAIASA DRUGU was not called.

[82] Although this was left unexplained, the Court makes no finding on this issue as it was not put to the Defendants’ two witnesses during cross-examination.

[83] The Court notes, however, that the Defendants did not follow correct procedures and take the Plaintiff directly to Suva Prison early the next morning of 8 June 2007 as was put to the First Defendant in cross-examination:

“Q: Can you explain why he was not taken to the Prison Authorities straight away?

Q: You kept the Plaintiff overnight in the Police cell can you give any reason why he was not taken at the early hours of the next morning rather than 1 pm when he was being released?

A: He was still complaining when we went to look for the victim to come and identify that warrantee

[84] What also come out in evidence (during Counsel for the Defendants’ cross-examination of the Plaintiff) was that the Police made a specific check after they released the Plaintiff from the cell (and before they let him leave the station) as to whether he wanted to say anything:

A: After the release they asked me if anything I wanted to say then I told them it was good of them not to assault me

A: They asked me if I wanted to say anything then I thank them for not hitting or assaulting me”

[85] It is also of interest that the First Defendant was not able to take the Court to any entry in the “Statement Diary Entry” of Friday, 8 June 2007, that records the victim’s attendance at Nausori Police Station to identify the Plaintiff. In addition, there was no notation or entry tendered to the Court from the First Defendant’s personal police note book (as the arresting officer) for 7 June 2007 recording this “fact” or, indeed, the personal police note book of any other officer (including the victim) who may have been involved with this matter.

[86] The FOURTH finding of the Court is that at Nausori Police Station on the morning of 8 June 2007, the Plaintiff continued to be held in a cell for approximately three hours until the early afternoon (sometime between 1.00pm and 2.00pm) even AFTER the victim had verified to the Police sometime mid-morning at Nausori Police Station, the Plaintiff’s claim as to his innocence and thus it had been confirmed to such Police that they were holding an innocent person.

[87] It is noted that the second witness for the Defendants, SERGEANT LAWAKELI (who had previously provided a statement (EXH “D1” Doc. 6) conceded in his sworn evidence:

(a) That a three days workshop of some basic OHS requirements was not the true nature of the OHS compliance in accordance with the Labour ministry;

(b) That he was not sure whether the cell block in Nausori Police Station is OHS compliant;

(d) That the nuisance of foul smell and other related nuisance is naturally accessible to the cell block;

(e) That at times more than 3 detainees are locked in one cell when demands so warrant;

(f) That upon the release of the plaintiff he did not ask him whether he had any complaint to lodge during his confinement in the Police cell block.

[88] It is further noted that taking into account the Plaintiff’s evidence as to the conditions and the fact that no witness was called by the Defendants to take the Court through the “Statement Diary Entry” from 7 June 2007 to 8 June 2007) to show how many people were being held in custody, to attest to the fact such diary entries were correct, ort what record there was of how many people were kept in each cell, the Court accepts the evidence of the Plaintiff on this issue.

[89] Thus, the FIFTH finding of the Court is that during the period when the Plaintiff was held at Nausori Police Station in the period from 3.00pm on the afternoon of 7 June 2007 until the afternoon of 8 June 2007:

(a) That the cell in which the Plaintiff was held had more than three and possibly up to six detainees to the cell;

(b) That no proper check was made to supply the Plaintiff with a mattress, blanket or pillow;

(c) That the sanitary conditions were such that the Plaintiff was expected to eat and sleep in the same area as where he and his fellow inmates had to go to the toilet meant that, in all probability, such facilities were not OHS compliant and unhygienic.

6. No communication with next-of-kin or for them to be informed as to his detention

[90] Compounding all that occurred, there was no evidence provided by the Defendants of even an attempt, let alone any interest, by those holding the Plaintiff at Nausori Police Station on 7 and 8 June 2007 in:

(a) providing the Plaintiff with the opportunity to communicate with and be visited by his next of kin and a religious counsellor; AND

[91] As the Plaintiff recalled in his evidence-in-chief, his extended family (who reside with him) wondered where he had been:

“Yes, they asked me where was I and I told them that I was in gaol – I was wrongly confine to a case where somebody else committed the offence”

[92] Thus, the SIXTH finding of the Court is that during the period when the Plaintiff was held at Nausori Police Station from late afternoon of 7 June 2007 until the mid-afternoon of 8 June 2007:

(a) That the Plaintiff was NOT provided with the opportunity to communicate with and be visited by his next of kin and a religious counsellor; and

(b) That those holding the Plaintiff during this period did NOT take any steps to inform the Plaintiff’s next of kin as to his arrest and detention.

[93] There is no dispute between the parties that pursuant to s.23(1) of the Constitution a person can be deprived of their liberty “for the purpose of executing the sentence or order of a court”.

[94] There is no dispute between the parties that the Magistrates Court at Nausori validly issued pursuant Section 37(1) of the Penal Code “a warrant of committal” for a term of imprisonment of a “PAULA ROKOTUIVIWA late of Nausori” who was convicted in the Magistrate’s Court at Nausori on 28 January 2008 for “Indecently Annoying Females”, fined $40 and in default one month’s imprisonment.

[95] Whether the Plaintiff was arrested and taken to Nausori Police Station or attended of his accord, it is not disputed that the Plaintiff was notified of the substance of the warrant in accordance with s.93(1) and (2) of the Criminal Procedure Code and thus this formed the basis of his initial arrest.

[96] A problem for the Defendants is this – the “warrant of committal” for a term of imprisonment was for a “PAULA ROKOTUIVIWA late of Nausori”, whereas in his evidence the Plaintiff gave his details as:

[97] Now while the Court can take Judicial Notice of the fact that NAUSORI and NASINU are about six miles apart, they are different places. This seems to have been completely missed by the arresting officer and extraordinary for a sergeant who is now an inspector. It was also not put to the Plaintiff in cross-examination by the Defendants to suggest that NAUSORI and NASINU are considered to be one and the same area.

[98] One of the issues which Counsel for the Plaintiff highlighted in his cross-examination of the First Defendant, was whether the Police really held a reasonable suspicion in the first place to arrest the Plaintiff:

“Q: Upon plaintiff insisting on telling you that he was the wrong person, you did not take any step to check the victim as to the true identity of the warrantee?

A: Prior to this incident we have checked around Nausori area and there is only one Paula Rokotuiviwa and that is the plaintiff

Q: I am putting it to you that you would have taken some reasonable step in identifying the true identity by the victim bearing the fact that the victim in this case is a policewoman who can be contacted without difficulty, do you agree?

Q: Would there be any other alternative arrangement like putting the plaintiff under police escort without being locked up in the cell while you look for the victim to identify plaintiff – would that be another alternative, would you agree?

Q: Since you have admitted that the person you’ve locked up in the cell and then denied it is the wrong person, you now realise the arrest made on that afternoon was wrong?

A: We only arrest the person whose name was on the warrantee and that was Paula Rokotuiviwa

Q: I am putting to you that you should have taken steps before locking the plaintiff in the cell to locate the victim and identify the plaintiff before your lock the warrantee up and restrain his rights and movements, do you agree that would be the best alternative?

[99] This issue was not taken up in re-examination, instead Counsel for the Defendants concentrated on clarifying as to whether the Plaintiff continued to object that they had the wrong person:

“Q: In the cross-examination when you were asked that the plaintiff vigorously insisted that he is not the right person?

[100] In relation to the case law cited by the Defendants, these can be distinguished from the present case upon the following basis:

(a) In Prasad v Ryland, Singh J dismissed a claim for wrongful arrest and deprivation of liberty for one hour as the Police were simply obeying a wrongly issued bench warrant.

In the present case, the Bench “Warrant of Commitment on a Conviction and in Default of Payment Imprisonment” was NOT wrongly issued, it was WRONGLY ENFORCED BY THE POLICE, as they arrested the wrong person and even though he protested his innocence did not “check” until the next day, AND then, even after realising their mistake, continued to hold the Plaintiff for a further three hours. As such, the Plaintiff’s claim is for a clear case of wrongful arrest and deprivation of liberty.

(b) In Chand v Narayan, Connors J dismissed a claim for false imprisonment when a Police Officer, in accordance with a warrant, simply brought the Plaintiff to the Lautoka Police Station. As Connors J noted, the claim should have been against the State and the other officers at Lautoka Police Station for not making proper inquiries once the Plaintiff had been delivered to them.

In the present case, the claim is against the First Defendant for not making proper inquiries once the Plaintiff had come to the station of his own accord and BEFORE arresting and detaining him.

(c) In Setevano v Attorney-General, a claim for malicious prosecution (after a conviction and successful Appeal) was not made out. This is not relevant to the present case.

[101 The present case is similar in many respects to Mataika v Attorney-General of Fiji (Unreported, High Court of Fiji, Civil No. HBC0507J of 1992, 19 April 1994, Fatiaki J) (Paclii: [1994] FJHC 35, http://www.paclii.org/fj/cases/FJHC/1994/35.html) where a police officer in enforcing a bench warrant arrested the wrong person as a result of mistakenly interpreting the order of his superior when pointing to the person to be arrested in amongst a crowd of people. The issue in that case concerned Section 21(j) of the Criminal Procedure Code which states:

"Any police officer may, without an order from a magistrate and without a warrant, arrest -

(j) any person for whom he has reasonable cause to believe a warrant of arrest has been issued."

“In Halsbury's Laws of England (4th ed.) Vol.45 at paragraph 1325 it is written:

The gist of the action of false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves he was imprisoned by the defendant; the onus then lies on the defendant to prove a justification."

More recently Ralph Gibson L.J. discussed the relevant legal principles applicable to the tort of 'false imprisonment' when he said in Weldon v Home Office [1990] 3 W.L.R. 465 at pp.470, 471:

"The intention necessary for commission of the tort is intentionally to do the act which causes the imprisonment. Added malice towards the imprisoned plaintiff is not necessary ... it is clear that the tort of false imprisonment can be committed without confinement of the plaintiff by walls or bars and locks. If a man is prevented from exercising his liberty ... by policemen he may thereby be falsely imprisoned.

What may amount to justification for arrest and imprisonment, as a defence to a claim for false imprisonment will depend upon the position in law of the person making the arrest and causing the complainant to be confined. A police constable has the same powers of arrest as a member of the public together with certain additional statutory powers. In general, an arrest on suspicion is not lawful unless there exists reasonable grounds for that suspicion: Dallison v. Caffery [1965] 1 Q.B. 348; and in an action for false imprisonment based upon wrongful arrest it is for the Court to judge the reasonableness of the suspicion." (My emphasis)

[103] In addition, Fatiaki J referred to DPP v Singh (Unreported, Fiji Court of Appeal, Criminal Appeal, No.72 of 1986) where:

“the Fiji Court of Appeal had occasion to consider the nature and extent of a police officer's powers of arrest under Section 21 of the Criminal Procedure Code [and] ... categorised Subsection (j) as being one of a group of 5 subsections which: "... specify that the officer should have reasonable grounds to suspect that a certain factual situation exists.

In the particular circumstances of this case that would mean that the arresting officer had reasonable cause to believe not only that a valid 'warrant of arrest' existed but also that the person being arrested was one and the same person named in the warrant.

[104] And this is precisely the crux of the current case before this Court. Even though in the present case a warrant had been issued for the arrest of one “PAULA ROKOTUIVIWA late of NAUSORI”, the First Defendant must still have had a reasonable cause to believe a warrant of arrest has been issued" for the PAULA ROKOTUIVIWA who was standing BEFORE HIM on 7 June 2007 at the Nausori Police Station. But how could he had formed that when he did not check that the identity of the person in the warrant was the same as “Paula Rokotuiviwa, Loading Boy at the Viti Mini Bus Co., of Lot 40, Lagakali Rd, NASINU”.

[105] In Mataika, the bench warrant was for a JONE KATONIVERE, and the person arrested was a JOSEFA KOROI. The questions Fatiaki J asked and his findings in relation to them were as follows:

1. Did the arresting officer have "reasonable cause" in terms of Section 21(j) of the Criminal Procedure Code? (page 5)

“... there was a valid 'warrant of arrest' ... The Section however requires more than the existence of a valid 'warrant of arrest', in addition the arresting officer must have "reasonable cause" to believe that the 'warrant of arrest' is "for" the person being arrested.

In other words the identity of the person being arrested is critical to the lawful exercise by the arresting officer of his power under Section 21(j) or to put it in the form of a question: Did the arresting officer have reasonable grounds for believing that the person he arrested was one and the same person mentioned in the 'warrant of arrest'?”

2. Did the arresting officer have reasonable grounds for believing that the person he arrested was one and the same person mentioned in the 'warrant of arrest'? (page 5)

“In Dallison v. Caffery [1965] 1 Q.B. 348, Diplock L.J. in discussing the nature of 'reasonable and probable cause' for an arrest without warrant said at p.370:

"When a felony has been committed, a person whether or not he is a police officer, acts reasonably in making an arrest without warrant if the facts which he himself knows or of which he has been credibly informed at the time of the arrest make it probable that the person arrested committed the felony. This is what constitutes in law reasonable and probable cause for the arrest."

"The test whether there was reasonable and probable cause for the arrest ... is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause."

3. What then was the state of his knowledge and information immediately before and at the time when he arrested the plaintiff which viewed objectively would furnish him with "reasonable cause"? (page 5)

“The arresting officer .. had no reason to doubt the accuracy ... as to the existence of the bench warrant "because he was my superior and I accepted his word." On that score I find that despite not having sighted the bench warrant the arresting officer had reasonable grounds to believe and did honestly believe that a valid bench warrant existed for the arrest of Jone Katonivere.”

4. But did the arresting officer additionally have reasonable grounds for believing that the person he arrested was Jone Katonivere? (page 6)

“The arresting officer in his evidence in chief said: "I believed him to be Jone Katonivere" but in my considered view that is quite insufficient to satisfy the objective test against which such belief must be measured by the Court. It is necessary to consider all the circumstances under which the arresting officer's belief was formed in order to objectively gauge its "reasonableness" or otherwise.

When asked in cross-examination why he had arrested the man after the man had denied that he was Jone Katonivere the arresting officer replied: "Because I had not seen Jone Katonivere and I suspected he was Jone Katonivere" and later he said: "Since there was no one there to verify (the man's identity) I had no alternative but to arrest him."

At no time did he ask the man to prove he was not Jone Katonivere or provide any form of positive identification to confirm that he was who he claimed to be.”

“I am satisfied that the arresting officer was the hapless victim of a situation which was fraught with uncertainty and doomed to end in failure. I also find that he had deliberately "down-played" the plaintiff's reactions and responses to the unfortunate and distressing situation in which he had been unwillingly and unwittingly placed.

In all the circumstances I am not satisfied that the arresting officer has discharged the burden of establishing a 'lawful justification' for the arrest of the plaintiff and I find that he had no reasonable grounds to believe that the plaintiff was Jone Katonivere the person named in the 'warrant of arrest' ... or to doubt the credibility of the plaintiff's denial.

Needless to say I reject entirely any suggestion that the arresting officer was entitled to detain the plaintiff until such time as his true identity had been verified. No authority has been cited to support such a proposition nor in my view is such a power to be found in Section 21(j) ...

In Blundell v. A.G. [1968] N.Z.L.R. 341 ... the appellant was restrained by police constables for some period in a public place and then was later taken to a police station while enquiries were being made as to whether or not a warrant had been issued for his arrest as alleged by a bystander, and which allegation later turned out to be completely incorrect

Turner J. in rejecting the lawfulness of the appellant's restraint by the police said at p.356:

"Detention while making inquiries cannot in my opinion be justified under the law of this country."

[106] Applying Mataika and the questions asked by Fatiaki J to the present case, my findings are as follows:

1. Did the arresting officer have "reasonable cause" in terms of Section 21(j) of the Criminal Procedure Code?

(a) There was a valid “Warrant of Commitment on a Conviction and in Default of Payment Imprisonment” in relation to “PAULA ROKOTUIVIWA late of Nausori”;

(b) In addition, however, did the First Defendant as the arresting officer “have ‘reasonable cause’ to believe that the “Warrant of Commitment” was "for" the person standing before him? To do so, as Fatiaki J noted in Mataika, “the identity ... is critical to the lawful exercise by the arresting officer of his power under Section 21(j)”

2. Did the arresting officer have reasonable grounds for believing that the person he arrested was one and the same person mentioned in the 'warrant of arrest'?

(a) Applying Lord Dipliock’s test from Dallison v Caffery (supra), whether the facts which the First Defendant knew at the time of the arrest make it probable that the person he was arresting committed the felony?

(b) The test whether there was reasonable and probable cause for the arrest of the Plaintiff is an objective one: whether a reasonable person, assumed to know the law and possessed of the information which in fact was possessed by the First Defendant, would believe that there was reasonable and probable cause to have arrested the Plaintiff?

(c) The problem comes back to the fact that the First Defendant just assumed he had arrested the correct person without any further check on identity.

3. What then was the state of the First Defendant’s knowledge and information immediately before and at the time when he arrested the plaintiff which viewed objectively would furnish him with "reasonable cause"?

As with Fatiaki J in Mataika, I accept that “The arresting officer ... had no reason to doubt the accuracy ... as to the existence of the bench warrant” and thus “the arresting officer had reasonable grounds to believe and did honestly believe that a valid bench warrant existed” for a “PAULA ROKOTUIVIWA late of Nausori”.

4. But did the arresting officer additionally have reasonable grounds for believing that the person before him and he was now arresting WAS PAULA ROKOTUIVIWA late of Nausori”?

(a) I am NOT satisfied (as was the case in Mataika) “that the arresting officer was the hapless victim of a situation which was fraught with uncertainty and doomed to end in failure”. Rather, in the present case, whilst the sparse details of the warrant may have contributed to the initial confusion, in this case the fault must lie at the feet of the First Defendant. He was NOT a “hapless victim”, rather, he was the master of his own ineptitude caused by his unexplained indifference to the plight of an innocent person.

(b) Further, (as also held in Mataika) “I am not satisfied that the arresting officer has discharged the burden of establishing a 'lawful justification' for the arrest of the plaintiff and I find that he had no reasonable grounds to believe that the plaintiff was [“PAULA ROKOTUIVIWA late of Nausori”] the person named in the 'warrant of arrest' ... or to doubt the credibility of the plaintiff's denial.”

(c) In addition, I reject (as was also the case in Mataika), “any suggestion that the arresting officer was entitled to detain the plaintiff until such time as his true identity had been verified” by the victim the following day. Indeed, I concur with the view expressed by Fatiaki J in Mataika that “no authority has been cited to support such a proposition nor in my view is such a power to be found in Section 21(j)”.

(d) On this issue, even though Mataika was decided in 1994 prior to the 1997 Constitution (which allows detention for up to 48 hours), I believe that it is still good law. As I held recently in The Commissioner of Police, Fiji Police Force v A Mother and Her Child, (supra) where in rejecting an appeal by the Police, I endorsed the finding of the Magistrate who held in that case:

“(i) That Section 17(b) of the Police Act 1978 states that a Police Officer is bound to act “promptly” which “in the ordinary meaning of the word is at once, directly, quickly, on the dot, on time, speedily swiftly, unhesitatingly” which “was not the case here”;

(ii) That the actions of the Defendant in delaying the process of interviewing, did not comply with Section 27(1)(a), (b) of the Constitution as the delay must be genuine” (My emphasis)

[107] I am also of the view that there are a number of sections of the Constitution applicable to the present case to which I will return later in this judgment, namely:

(a) for the purpose of executing the sentence or order of a court, whether handed down or made in Fiji or elsewhere, in respect of an offence of which the person has been convicted;

(e) if the person is reasonably suspected of having committed an offence”;

(d) to be given the opportunity to communicate with, and to be visited by:

(e) to challenge the lawfulness of his or her detention before a court of law and to be released if the detention is unlawful; and

(f) to be treated with humanity and with respect for his or her inherent dignity.

(2) The authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.”

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.”

[108] There is no dispute between the parties that pursuant to s.23(1) of the Constitution a person can be deprived of their liberty “for the purpose of executing the sentence or order of a court”.

[109] There is no dispute between the parties that the Magistrates Court validly issued pursuant Section 37(1) of the Penal Code “a warrant of committal” for a term of imprisonment of a “PAULA ROKOTUIVIWA late of Nausori” who was convicted in the Magistrate’s Court at Nausori on 28 January 2008 for “Indecently Annoying Females”, fined $40 and in default one month’s imprisonment.

[110] At the same time it must be remembered that a person who is arrested or detained has the right “to be promptly released if not charged ...” and “to be treated with humanity and with respect” as per s.27(1)(b) and (f) of the Constitution.

[111] The Defendants claim that they were just complying with s.17(3) of the Police Act which required them “promptly to obey and execute all orders and warrants lawfully issued” and thus are immune to civil suit. The problem with this submission is thus: the Plaintiff is not claiming a negligent investigation. Rather, he is claiming that two of his legal rights were infringed – he was unlawfully arrested and then falsely imprisoned.

[113] The Court acknowledges that that no cause of action can be maintained for a negligent investigation (see Sullivan v Moody (2001) 207 CLR 562; and Wilson & Ors v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407). For example, as the High Court of Australia pointed out in Sullivan v Moody at paragraph 57:

“In Hill v Chief Constable of West Yorkshire [1989] AC 53 the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal.”

[114] What is being alleged in the present case, however, is not a ”negligent investigation” or the “careless failure to apprehend a dangerous criminal”. Rather, the Plaintiff is claiming an unlawful arrest – the police had no basis to arrest him.
It was upon them to execute the warrant not only promptly but correctly, that is, to be satisfied as to identity, that they had arrested the correct person, otherwise it was an unlawful arrest. Further, once it became an unlawful arrest, then the subsequent detention became a matter of false imprisonment as the police had no basis upon which to detain him.

[115] In view of the above, in particular, applying Mataika to the present case, I find

(a) That the Plaintiff was unlawfully arrested by the First Defendant at Nausori Police Station on 7 June 2007;

(b) That the Plaintiff was then falsely imprisoned at Nausori Police Station from late afternoon on 7 June 2007 until late afternoon on 8 June 2007.

[116] In addition, I find that the Plaintiff’s rights under the Constitution were breached by what occurred to him through his unlawful arrest and false imprisonment at Nausori Police Station on 7 and 8 June 2007, namely:

(b) Section 27 (1) (b), (d), (e) and (f) and Section 27 (2) (rights of detained persons); and;

(d) Damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27)

“Q: Now you asking this Court to allow you for general damages just for inconvenience, for anxiety, mental distress, pain and suffering which you have suffered and endured as a result of your confinement in the Police cell for some 21 hours?

Q: And also you are asking the Court in your prayer for damages for unlawful arrest?

Q: Asking the Court to consider damages under the Law Reform of Miscellaneous Provisions Act?

Q: Asking the Court to consider costs on an indemnity basis for unlawful arrest and the anxiety and things you’ve gone while in confinement unlawfully?

Q: Also you asking such favour or other relief which this Court may deem just and expedient?

[121] In his closing submissions filed on 29 July 2008, Counsel for the Plaintiff has restated the the Plaintiff’s Statement of Claim but added that they now realise that the damages sought for unlawful arrest and unlawful detention “are associated witch one another (i.e.) these are exemplary or punitive damages as a result of the wrongful arrest done to him [the Plaintiff] by the Defendants”.

[122] In his Closing Submissions filed on 7 August 2008, Counsel for the Defendants has has cited the following:

(i) Mataika v Attorney-General of Fiji (supra) where Fatiaki J awarded $1,500 together with costs after the Plaintiff had been arrested in public and taken briefly into the custody of a police officer;

(ii) Raikeli v Attorney-General [1999] 45 FLR 313 where Scott J awarded $26,000 for 11 months imprisonment.

(i) Kasim v Commissioner of Police (Unreported, High Court of Fiji at Suva, Civil File No. HBC0471 of 1999, 3 December 2001, Byrne J); (Paclii: [2001] FJHC 133, http://www.paclii.org/fj/cases/FJHC/2001/133.html)

where in a total award of $11,599.12, Byrne J awarded $5,000 for aggravated damages and $5,000 for exemplary damages as well as $1,1199.12 for special damages (including interest) where the Plaintiff on two occasions was detained at Nadi International Airport for approximately one hour and 10 minutes and 45 minutes respectively. On the first occasion the delay caused the Plaintiff to miss his flight. In that case Byrne J drew upon –

(ii) Singh v Mar & Ors (Unreported, High Court of Fiji at Suva, Civil Action No. HBC489 of 2006, 29 September 2007, Singh J) where damages were awarded of $1,000 to a Plaintiff who was held for approximately nine hours together with special damages of $700 and $2,500 costs.

(iii) Bachu v Commissioner of Prisons (Unreported, High Court of Fiji at Suva, Civil Action No.369 of 2003, 27 April 2007, Singh J) (Paclii: [2007] FJHC 115, http://www.paclii.org/fj/cases/FJHC/2007/115.html)

where damages were awarded of $3,000 for two days where the Plaintiff was unlawfully detained, together with an award of costs of $2,250.

[123] In his evidence, the Plaintiff says he survived his ordeal on 7 and 8 June 2007 through prayer. The question is what should he be awarded for the unlawful arrest and false imprisonment, remembering this was a middle aged person who had “never been locked in a cell” before? The ordeal, he recalled in his evidence,included the following:

A: Yes and I did not want to eat the meal, I cried because I’m thinking of what has happened to me, someone else committed an offence and to which I’m wrongly gaoled for

Q: What happen after your release, can you explain? Did the police conduct an investigation?

Q: Now the condition of the cell of which you are being locked up in were you by yourself or other inmates?

Q: And what were you doing when not sleeping – what were you doing in the cell?

Q: From the time of your arrest on 7th June 2007 that was at 1655 hours and you were released on the following day 8/6/07 at 1311 hours – would you agree that you had spent 21 hours in the cell?

Q: Can you explain to the Court how did you feel during your confinement in the cell?

A: By the time I was discharged, my leg and body was weak and I was thinking what has happened to me because another person who did the wrong and I was wrongly confined.”

[124] I find that the Plaintiff was honest in his evidence (even to his own detriment) agreeing with his Counsel that upon his release he did not have any ongoing suffering – a fact which he attributed to his religious beliefs. Indeed, the humiliation of the Plaintiff was palpable in Court as he quietly gave his evidence recounting what happened to him on 7 and 8 June 2007. His quietness, however, was something challenged by Counsel for the Defendants in the following exchange:

A: I always call passengers to come to the van and also call the van whom are park on the sides of the road that is our job as a loading boy in the Viti Mini Bus.

Q: Is it correct that you usually yell out to the passengers to get into the mini bus?

Q: And why you not talking loud today, are you afraid of telling lies in this Court?

[125] Despite the suggestion put to the Plaintiff that his “not talking loudly” at the hearing was perhaps the result of his being “afraid of telling lies” to the Court, I find nothing of the sort. Indeed, the Plaintiff struck me as a man of sincerity who clearly had been humiliated and was embarrassed having to recount in Court what happened to him on 7 and 8 June 2007. It is again worth recalling (as I have on a number of occasions throughout this judgment) that here was a middle-aged religious person who had never been inside a cell before, let alone having any prior convictions, who was told that he had indecently assaulted a police woman and was on a warrant to go to prison and was then locked up for some 22 hours.

[126] Even though the Plaintiff has claimed general damages and then separate damages for the unlawful arrest and unlawful detention, I believe that the claim can be rightly categorised as for aggravated damages. In that regard, I am mindful of what Byrne J held in Kasim v Commissioner of Police (supra), where the Plaintiff had claimed general damages and Byrne J awarded aggravated damages instead explaining:

“The Defendants argued that there are many mitigating circumstances in their favour. They say that both incidents occurred as a result of an honest mistake ... and that they have now apologised to the Plaintiff. Thus they say this is not a case where Police Officers deliberately flouted the law and their conduct could not be regarded as outrageous and contumelious. Rather it was an honest error of judgment based on a mistake.

While I accept that an apology can go some way to mitigating damages and that the Plaintiff was at all times treated courteously by the Defendants nevertheless I am satisfied that he was humiliated and his feelings hurt by the actions of the Defendants. If there was some excuse for their actions on the first occasion there certainly was none for what they did on the second occasion. Where liberty of the subject is concerned the Police ... cannot be too careful. It was the duty of both Departments, particularly the Police, to keep their records up to date and this was not done. To me it indicates an attitude of indifference which it is hoped will not occur again ...

Although the Plaintiff claims general damages, in my judgment his proper claim is for aggravated damages. In Gary Mark Lackersteen v. Melvin Lawrance Jones and Others (1988) NTSC 60 Asche C.J. described the difference between aggravated and exemplary damages after reviewing various authorities on the subject. He said, "The basis for aggravated damages lies in compensation of a particular kind based not on physical injury or discomfort but on humiliation and injury to feelings" ...

... I consider it fair to award the Plaintiff aggravated damages for the humiliation he suffered of $5,000.00.”

[126] I note that the English and Welsh Court of Appeal in Thompson v Commissioner of Police for Metropolis [1997] EWCA Civ 3083; [1997] 3 WLR 403, set out a number of principles which judges should use when guiding juries in awarding damages (see http://www.bailii.org/ew/cases/EWCA/Civ/1997/1042.html). Lord Woolf MR in delivering the judgment of the Court in Thompson made the following points in relation to general and aggravated damages:

“(1) It should be explained to the jury that if they find in the plaintiff’s favour the only remedy which they have power to grant is an award of damages. Save in exceptional situations such damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he [or she] has suffered. They are not intended to punish the defendant.

(2) As the law stands at present compensatory damages are of two types. (a) Ordinary damages which we would suggest should be described as basic, and (b) aggravated damages. Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant’s conduct which justify the award of aggravated damages ...

(3) The jury should be told that the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff .... The Judge will be responsible for determining the bracket, and we envisage that in the ordinary way the Judge will have heard submissions on the matter from counsel ...

(4) In a straightforward case of wrongful arrest and imprisonment ... the jury should be informed of the approximate figure to be taken as the correct starting point for basic damages for the actual loss of liberty ... It should be explained that these are no more than guideline figures based on the Judge’s experience and on the awards in other cases and the actual figure is one on which they must decide.

(5) In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for twenty four hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale ...

(7) The figures which we have identified so far are provided to assist the Judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can very dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner.

(8) ... Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest ... which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment ...

(9) The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category ...

(10) We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.

(11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.”

[127] The Judicial Studies Board of the United Kingdom, Civil Bench Book, on civil jury trials, (see http://www.jsboard.co.uk/civil_law/cbb/mf_16.htm) makes the following points in relation to what they term basic (general) and aggravated damages:

These are entirely compensatory. It is useful to inform the jury of a range of awards for similar injuries ...

The general damages in false imprisonment cases will be for the loss of liberty and any loss of dignity or reputation. In a straightforward case: £500 for the first hour, reducing hourly thereafter and £3,000 for the first 24 hours, reducing thereafter ...

These are designed to compensate the claimant where the circumstances of the tort cause additional injury to hurt feelings, loss of dignity and the like. For example, if a wrongful arrest takes place in demeaning circumstances, in the public street or accompanied by arrogance or aggression, this may be a case for aggravated damages. Note they must be pleaded and claimed. Beware of an overlap with exemplary damages. The jury should be asked to identify the amount awarded for aggravated damages. If justified, the starting point is about £1,000. They should not normally exceed twice the basic award for damages.”

[128] The Judicial Studies Board of the United Kingdom, Civil Bench Book, also goes on to note at paragraph 16.6.5 citing Lord Woolf in the Court of Appeal in Heil v Rankin [2000] EWCA 53; [2000] 3 All ER 138, approving Bingham MR in the Court of Appeal in John v MGN Ltd [1997] QB 586 at 611, 614:

“Any legal process should yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little. That is so whether the award is made by judge or jury ... Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike ... The conventional compensatory scales in personal injury cases must be taken to represent fair compensation ...

“Excessive importance must not, however, be attached to consistency. Care must be exercised not to freeze the compensation for non-pecuniary loss at a level which the passage of time and changes in circumstances make inadequate. The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.”

[129] In considering the appropriate figure to be applied in the Fiji Islands using the cases submitted by the Defendants as a guide, I note that Mataika (supra) where $1,500 was awarded was some 14 years ago; Vakacoko where $4,000 was awarded for six days unlawful detention was in December 1999; Seniloli where a teenager was award $6,800 for four hours being handcuffed to a post was in February 2000; Kasim v Commissioner of Police (supra) where $5,000 was awarded for two incidents was in December 2001. Two recent decisions in Singh v Mar & Ors and Bachu v Commissioner of Prisons suggest a figure of approximately $1,500 to $2,000 a day for general damages which can then be doubled by way of aggravating circumstances.

[130] I am mindful that the Court of Appeal of the Fiji Islands in 2006, increased an award of $5,000 to $15,000 for breaches of the Constitution where a complainant was detained for four hours by the Police during which she underwent a forced medical examination (see The Proceedings Commissioner Fiji Human Rights Commission v The Commissioner of Police and others, (Unreported, Civil Appeal No. ABU0003U of 2006S, 24 November 2006, Ward P, Wood and McPherson JJA) (Paclii: [2006] FJCA 75, http://www.paclii.org/fj/cases/FJCA/2006/75.html)

[131] I am also mindful that recently I upheld in The Commissioner of Police, Fiji Police Force v A Mother and Her Child (supra), an award of aggravated damages by a Magistrate of $3,000 to the Plaintiff for the unreasonable delay of 10 hours in her 26 hours of detention and $1,500 for aggravated damages. In addition, $6,000 was awarded to the Plaintiff’s four year old daughter who was detained for about five hours.

[132] In Commissioner of Police v A Mother and Her Child, I also drew upon Clerk & Lindsell on Torts, 19th edn, Sweet & Maxwell, London, 2006, where at paragraphs 29-137 to 29-139, pages 1881-1882, it was explained in relation to the awarding of aggravated damages:

“Where the manner of the commission of the tort was such as to injure the claimant’s proper feelings of dignity and pride, higher damages than would otherwise have been justified may be awarded. Such aggravated damages, as they are known ... may appear to incorporate an element of punishment imposed by the court for ... bad conduct, but the intention is rather to compensate the claimant for injury to his [her] feelings and the amount payable should reflect this.

Aggravated damages are... quite distinct from exemplary or punitive damages which are awarded to teach the defendant that ‘tort does not pay’ and to deter him [her] and others from similar conduct in the future.... it has to be borne in mind that, except where exemplary damages are permissible, every award of damages, including aggravated damages where appropriate must be justifiable on the basis of compensation. If it is not, the inference will be that an improper element of punishment of the defendant or of simple bounty for the claimant has entered into the assessment and the award will, accordingly, be struck down on appeal ...”

(a) That that the Plaintiff was unlawfully arrested and then falsely imprisoned for approximately 22 hours;

(b) That I am satisfied that in the present case the Plaintiff suffered “a loss of liberty and dignity” as a result of his unlawful arrest and false imprisonment by the Defendants;

(c) That it is also clear that the Plaintiff twice suffered the humiliation of being arrested by the Police. On the first occasion, he was released soon afterwards and did not press for damages in relation to that matter at the hearing. On the second occasion, the First Defendant did not make any background check as to the Plaintiff’s identity and/or the person named in the warrant such as to result in the Plaintiff being unlawfully arrested. Indeed, the Plaintiff was not listened to when he tried to explain to the First Defendant that a similar error had occurred previously. As noted above, here was a middle-aged religious person without any prior convictions being told that they had indecently assaulted a police woman and that they were on a warrant to go to prison!

(d) That the timing of the detention from late afternoon, overnight and then into the next afternoon meant that, in reality, the Plaintiff, spent two days falsely imprisoned;

(e) That for the initial shock and humiliation of the unlawful arrest, I award $2,500;

(f) That for the false imprisonment, I allow two days at $2,500 per day totalling $5,000;

(g) That an amount of aggravated damages should be included (to cite Lord Woolf from Thompson v Commissioner of Police (supra)), for the “humiliating circumstances at the time of arrest ... which shows that they had behaved in a high handed, insulting ... manner” in relation to both the arrest or imprisonment”;

(h) That for aggravated damages, I allow $1,000 for the unlawful arrest and $1,500 per day for each day of the false imprisonment making a total award of for aggravated damages of $4,000;

(i) This means that the total I award for general and aggravated damages is $11,500.

[134] Neither in the Plaintiff’s Statement of Claim nor his Schedule of Damages was there a specific claim made for exemplary damages. As noted above, only in his Closing Submissions did Counsel for the Plaintiff, apart from restating the damages sought from the Statement for Claim, add that they now realised that the damages sought for the unlawful arrest and unlawful detention are associated with a claim for exemplary or punitive damages.

“A claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies.”

[136] Recently, in Wasal Khan & Ors v Eparama Turaga & Ors, (Unreported, High Court of Fiji at Lautoka, Civil Action No.HBC0344 of 1998, No.30 of 2006, 22 March 2006) Finnigan J held at paragraph 71 that although there was no such claim in the pleadings Counsel had “voiced a claim in submissions” and “this is permissible if the evidence warrants such a claim”.

[137] This Court concurs with the view expressed by Finnigan J in Khan v Turaga. In the present case, Counsel for the Plaintiff has “voiced a claim in submissions” and, in the Court’s view, “the evidence warrants such a claim”.

[138] To cite Clerk & Lindsell on Torts (supra) at paragraph 29-139, page 1883:

“Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 laid down that exemplary damages, as distinct from aggravated damages, should only be awarded in two specific categories... unless ... expressly authorised by statute ... first, cases of ‘oppressive, arbitrary or unconstitutional action by the servants of the government and ... cases in which ‘the defendant’s conduct has been calculated ... to make a profit ... which may well exceed the compensation payable to the [claimant].”

[139] As I noted in Commissioner of Police v A Mother and Her Child, at paragraph 72 (drawing upon Clerk & Lindsell on Torts at paragraph 29-140, page 1884) that despite criticism of it, Rookes it has been followed in England and Wales whereas not always in many other jurisdictions of the Commonwealth including the High Court of Australia.

[140] Indeed, in Khan v Turaga, Finnigan J noted that the High Court of Fiji “is often guided by a decision in the High Court of Australia, Uren v John Fairtfax & Sons Pty Ltd [1966] HCA 40; (1968) 117 CLR 118 at 119 where Taylor J said”:

“Prior to Rookes v. Barnard [1964] UKHL 1; (1964) AC 1129 the law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights.”

[141] The Judicial Studies Board of the United Kingdom, Civil Bench Book, on civil jury trials, (see http://www.jsboard.co.uk/civil_law/cbb/mf_16.htm)
makes the following points in relation to exemplary damages:

These are only to be left to the jury where they have been claimed and where the judge considers there is evidence to support such a claim (see Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1997] 3 WLR 403, 417 at paragraph 12.

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 defines exemplary damages as being awarded in cases of 'oppressive, arbitrary or unconstitutional action by servants of the government.' Is this not the case in every false imprisonment?

The starting point is £5,000, but they must be particularly deserving of condemnation to justify as much as £25,000 and the absolute maximum is £50,000 where, for example, it involves an officer of the rank of at least Superintendent.

Damages may be reduced if the claimant's own conduct contributed to the incident. The prospect of the possibility of police disciplinary action and the unwillingness of the claimant to avail himself of the police complaints procedure is not relevant to the issue of damages.”

[142] Clerk & Lindsell on Torts (supra) notes (at paragraph 29-141, page 1884) that in relation to the first of Lord Devlin’s categories, “in recent times, the most common example of exemplary damages being awarded in this category has been actions against the police for torts such as assault and false imprisonment” and citing Thompson v Commissioner of Police (supra) (from 10 years ago) that there should be a starting point of £500 [sic] and a maximum of £50,000.

[143] What Lord Woolf MR actually said in Thompson v Commissioner of Police on exemplary damages was:

“(12) Finally the jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury:

(a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant’s point of view;

(b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants.

(c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public. [This guidance would not be appropriate if the claim were to be met by insurers].

(d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury’s disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.

(13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.”

[144] Perhaps the views of Brennan J from the High Court of Australia (who was later a member of the Supreme Court of the Fiji Islands) encapsulate what a Court is trying to achieve by awarding exemplary damages when in XL Petroleum (N.S.W.) Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd (1985) 155 CLR 448; (Austlii: [1985] HCA 12, 28 February 1985, http://www.austlii.edu.au/au/cases/cth/HCA/1985/12.html), he said, at page 471 (paras 9-10):

"As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite
different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey (1814) 5Taunt 442 [1814] EngR 330; (128 ER 761) substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs C.J. saying:

'I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?' The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v. Cassell & Co. [1972] UKHL 3; (1972) AC 1027, at p 1130, 'to teach a wrong-doer that tort does not
pay'."

[145] In considering the appropriate figure to be applied in the Fiji Islands using as a basis the cases cited by the Defendant, the only one relevant to exemplary damages was Kasim v Commissioner of Police (supra) where Byrne J awarded $5,000 was awarded for two incidents in December 2001 stating:

“On the question of exemplary damages which are punitive in nature because their function is to punish or mark the disapproval of the Court, it is relevant to consider certain parts of the 1998 Constitution. The preamble to the Constitution contains this penultimate paragraph:

‘REAFFIRMING our recognition of the human rights and fundamental freedoms of all individuals and groups, safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family ..........’

This is no mere empty form of words. It is an affirmation or declaration of faith, no more nor less than the sentence which begins the Creed in the Roman Catholic liturgy: "Credo in unum Deum" - "I believe in one God" - the fundamental basis not only of the Roman Catholic but also of most other religions.

Thus, human rights and the fundamental freedoms enshrined in Sections 23 (personal liberty), 26 (freedom from unreasonable searches and seizure), 27 (rights of detained persons), and 34 (freedom of movement), for example, are to be at all times protected and respected by those persons having the authority and duty to do so. There can be no half-way house.

The officers of the First and Second Defendants did not accord the Plaintiff the rights guaranteed him by these Sections and for this I am satisfied they must pay him exemplary damages which I assess at $5,000.00.” (My emphasis)

[146] As Byrne J held in Kasim (supra), these are “There can be no half-way house.” It is for this reason that exemplary damages are not only appropriate in the present case but must be awarded as they easily come within Lord Devlin’s first category from Rookes of 'oppressive, arbitrary or unconstitutional action by servants of the government.'

[147] In addition, the question as to whether an award against the Police in such matters as the present case, should also take in to account that a message should be sent to those responsible for the overseeing of the Police, was taken up by Priestly JA (with whom Sheller and Beazley JJA agreed) in Adams v Kennedy (2000) 49 NSWLR 78; (Paclii: [2000] NSWCA 152, 26 June 2000, http://www.austlii.edu.au/au/cases/nsw/NSWCA/2000/152.html)
wherein he said:

“ In the present case, although strictly it would be proper to award a separate amount for each cause of action, it seems to me that since the different causes of action arose out of the one series of closely connected events, it is appropriate to award one aggregate figure in respect of all the causes of action. That figure should indicate my view that the conduct of the defendants was reprehensible, mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen.”

[148] The issue was recently considered by the High Court of Australia in State of NSW v Ibbett (2006) 231 ALR 485; (2006) 81 ALJR 427); (Austlii: [2006] HCA 57, 12 December 2006, Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJA, http://www.austlii.edu.au/au/cases/cth/HCA/2006/57.html)
As the Court noted at paragraph 51: “Counsel for the State went on to stigmatise as illegitimate what had been said by Priestley JA when delivering thecipalcipal reasons in Adams v Kennedy.”

[149] In considering Priestly’s statement, the High Court of Australia noted that “shortly thereafter, Lord Hutton was to speak to similar effect” in Kuddus v Chief Constable of Leicestershire Constabular [2001] UKHL 29; [2002] 2 AC 122 at 149; (Bailii: [2001] UKHL 29), where he concluded:

"I think that a number of cases decided by the courts in Northern Ireland during the past 30 years of terrorist violence give support to the opinion of Lord Devlin in Rookes v Barnard ... that in certain cases the awarding of exemplary damages serves a valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law ... In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times."

“Nor was Priestley JA the first to tach an appn approach to an award of exemplary damages in respect of the misuse of coercive powers entrusted to public officials. In Peeters v Canada (1993) 108 DLR8 DLR (4th) 471, the Federal Court of Appeal (Heald, MacGuigan and Linden JJA) upheld an award of $Can16,000 as "punitive" damages for an assault on the plaintiff, whilst in prison, committed by officers of the Correctional Service of Canada ("CSC"). After referring to the training given to CSC officers respecting the proper use of force on inmates, the Court remarked at 482: