Tiara Enterprises Ltd v Attorney General [2009] FJHC 155; HBC418.1997L (29 July 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 418 of 1997L

BETWEEN:

TIARA ENTERPRISES LIMITED
Plaintiff

AND:

THE ATTORNEY GENERAL
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr K. Kumar for the Plaintiff.
Mr R. Green and Mr J. Lewaravu for the Defendant.

Solicitors: Young & Associated for the Plaintiff.
State Solicitors for the Defendant.

Date of Hearing: 11 July 2007
Date of Judgment: 29 July 2009

INTRODUCTION

[1] The Plaintiff trades under the name and style of "Sogo Fiji" and "Banana Republic" in the retail of upper class garments with shops in Suva and Nadi.

[2] It alleges that sometime in August 1996 the Fiji Police simultaneously "conducted a commando type search" of its shops based on information received from the Australian Police that the Plaintiff was selling hemp garments stolen from an Australian distributor in Victoria. The Plaintiff alleges also that the Police ordered shoppers out and closed its outlets and seized its goods unlawfully. It says the Police "raids" were illegal because the search warrants authorising them were not based on facts or reasonable suspicion justifying their issue.

[3] It sued the Attorney General as the legal representative of the Fiji Police by virtue of the State Proceedings Act (Cap 24).

[4] The Statement of Claim filed on 24 November 1997 sets out 4 causes of action: (1) trespass to the Plaintiff’s premises (2) trespass to the Plaintiff’s goods (3) abuse of process/misfeasance in a public office, and (4) breach of the Plaintiff’s rights under the 1990 Constitution. For each of the cause of action, the Plaintiff claims exemplary damages, general damages, interest and costs. At the trial, Counsel for the Plaintiff indicated that his client was not suing for economic loss.

[5] The Fiji Police deny that they acted unlawfully. They say in their Defence that they had reasonable suspicion based on the information they received that the Plaintiff was selling goods that were stolen or otherwise unlawfully obtained. They say that they entered the Plaintiff’s shops in an orderly and courteous manner.

[6] The matter was eventually set down for trial on 11 July 2007. It took a day for trial and the trial Judge heard evidence from 5 witnesses, two for the Plaintiff and three for the Police.

[7] This is one of those cases where the trial Judge was not able to deliver Judgment and the matter came before me in July 2009. On my direction the Registry wrote to the solicitors involved on 8 July 2009 seeking their views as to how they wished the matter to be dealt with i.e. (a) by hearing de novo, or, (b) judgment to be delivered by me based on the trial Judge’s comprehensive notes taken at the hearing, or, (c) the matter be discontinued and struck out.

[8] Wisely and properly, in my view, when the matter was called before me on 17 July 2009, both Counsel consented to my delivering judgment based on the trial Judge’s notes and the trial papers and Counsels’ submissions.

[9] This judgment is delivered under those circumstances.

[10] After due deliberation I find that the Plaintiff has failed to prove its case and I dismiss it accordingly. Judgment is therefore entered for the Defendant with costs of $1,000 to be paid by the Plaintiff within 21 days.

[11] My reasons follow.

HIGH STANDARD OF DOCUMENTATION

[12] Firstly, I want to commend the lawyers involved for the high standard of work exhibited in this case. I am impressed by the high standard of presentation and compilation of the documents filed in Court and commend the lawyers and their staff accordingly. Justice Lyons of this Court has commented in the past that the standard of practice by some members of the legal profession in this country is on par with that in the Australian jurisdiction. I respectfully repeat those comments here lest there be doubters in our community that a high standard of practice in Fiji cannot be expected from the members of the legal profession. This matter has taken sometime to get to judgment but no blame can be laid at the feet of the lawyers involved here for sub-standard pleadings and submissions.

THE PLAINTIFF’S CLAIM

[13] The Plaintiff’s claim, as mentioned in paragraph 4 above, is for exemplary and general damages, interest and costs for (1) trespass to the Plaintiff’s premises (2) trespass to the Plaintiff’s goods (3) abuse of process/misfeasance in a public office, and (4) breach of the 1990 Constitution.

THE CASE HISTORY

[14] The cause of action arose in August 1996 and the Writ of Summons was filed on 24 November 1997. The Plaintiff’s summons for a hearing date to be assigned was filed on 27 October 1999. A further summons was filed on 18 January 2001. The matter went through a settlement phase with no positive result and eventually was set down in February 2007 for hearing on 11 July that year. The matter was heard on that day and Counsel were ordered to file written submissions and the matter adjourned for oral submissions. On 5 February 2008 the day set down for oral submissions, there was a power outage at the Court building so the matter was further adjourned to 12 March 2008, on which day the Court heard submissions. Judgment was to be delivered on 25 July 2008. The trial Judge took ill during this time so delivery of the judgment was further delayed to October 2008 and then to 17 December 2008. I have referred to the rest of the case history above.

THE ISSUES

[15] The first question that should be asked in this case is whether the Fiji Police is entitled to accept the information they received from the Department of Fair Trading, the Victorian Police and other sources in Australian without more.

[16] The question is not, in my opinion, whether the Fiji Police had reasonable grounds to ask for search warrants of the Plaintiff’s clothing outlets. To proceed in this manner would require me to revisit the exercise of discretion by the issuing Magistrate or Justice of the Peace. The law is well settled that the reviewing court will not overturn the exercise of discretion by the lower court unless that court was clearly wrong at law or that there was no evidence on which the court could use. The Plaintiff did not plead particulars of its case in this regard so no evidence was led.

[17] Approaching this case by asking the first question that I have posed above, it becomes immediately obvious that the search warrants were valid.

[18] I do not think that the Fiji Police need to look behind the information they received. So long as the source is authentic then that is sufficient in my view. It is a matter of practical necessity that this should be so. In the same way that if the Fiji Police receives information from Interpol they are entitled to act on it without more. Apart from jurisdictional issues, it would be quite unreasonable if the law here in Fiji was to require the Fiji Police to enter into its own inquiry into something that happened in Australia. The whole system of international cooperation and crime prevention would become unworkable. I do not think I need any case authority to support this proposition.

[19] However, that is not the end of the matter. This Court needs to inquire further as to whether the police acted within the law in the execution of the warrants.

[20] Therefore, I am required to inquire into the facts to ascertain two things. Firstly, whether the information was received from the Department of Fair Trade here in Fiji, Victorian Police and other sources in Australia. And, secondly, whether the Fiji Police acted reasonably in the execution of the warrants, i.e. in the conduct of the raid.

[21] However, because of the way the Plaintiff had pleaded its case and the way the trial was conducted and the effort put in by Counsel I will consider the evidence as if I was required to decide whether the Police had reasonable suspicion to support the issue of the search warrants.

THE AGREED FACTS

[22] The following facts were agreed:

1. On or about 18 August 1996, the Fiji Police issued and obtained search warrants to search the Plaintiff’s business outlets in Nadi and Suva.
   
2. On or about 20 August 1996, the Fiji Police carried out a search at the Plaintiff’s outlets.
   
3. The Fiji Police did seize certain garments from the Plaintiff’s outlets.
   

[23] The Plaintiff’s Statement of Claim pleaded in paragraphs 7 and 8 that the complainant (Harvest Hemp Co Pty Ltd) had lodged its complaint with the Australian Police on the basis of information given by a person unknown to the Plaintiff that the Plaintiff was selling the complainant’s missing/stolen hemp garments in one of the Plaintiff’s outlets and that the Fiji Police were informed by their counter-parts in Australia about the complaint and information and upon this basis, the Fiji Police applied for and obtained a search warrant to search. The Defence did not admit that the Fiji Police were informed by Australian Police but simply admitted that "based on information received the Fiji Police acted".

[24] However, examination of the Pre Trial Minutes and the conduct of the trial show that the parties proceeded on the basis that the fact that information was received from the Victorian Police was admitted and not a fact in issue. This is perhaps explained by the failure to ask the first question that I referred to above.

THE TRIAL DOCUMENTS

[25] The Plaintiff’s Bundle of Documents numbered 1 to 9 was tendered by consent.

[26] The Defendant also filed a Bundle of Documents. Some of these documents were objected to by the Plaintiff and I deal with these objections below.

THE TRIAL EVIDENCE

THE PLAINTIFF’S WITNESSES & DOCUMENTS

[27] The principal and director of the Plaintiff gave evidence. He said the Plaintiff operated under the business names "Sogo Fiji" and "Banana Republic". He said that he was on a purchasing trip overseas at the time when the Police raid took place. He was called by his brother in Nadi and told of the raid. He was appalled and very disturbed about the nature of the raid at Main Street, Nadi and Cumming Street, Suva. He asked his brother what reason was given for the raid. The explanation given at the time was that because the clothing was made of hemp it was illegal, the reason being that a customer could burn and smoke the hemp clothing as marijuana, an illicit drug in Fiji. So he contacted his supplier in Melbourne to write and confirm that it was quite legitimate to export such clothing from Australia, which the supplier did by fax to his solicitors on the same evening 20 August 1996.[1] It was only after his meeting with Police on 28 August 1996 that he found out the "official" reason for the raids – that there was a complaint received from someone in Melbourne that garments went missing from a bonded warehouse and ended up in Sogo’s shops. Between 20 and 28 August he said the rumor was that they were selling drugs. The director spoke of the embarrassment and vicious rumors that he and his family, and his elderly parents had suffered for being labeled dishonest people and drug dealers.[2] On 23 October 1996[3] in response to the Plaintiff’s request, the Police wrote to the director advising him that after examination and verification, the Police decided to return some of the garments to the Plaintiff. The letter further said the Police were awaiting the result of investigation by the Victorian Police where the theft of similar garments had been reported. The Police wrote to the director again on 3 February 1997[4] advising him that the investigation was initiated from information received from Harvest Hemp Co Pty Ltd, Australia, and the investigation was continuing.

[28] In the course of the trial the Counsel agreed that the garments that were seized were imported into Fiji legitimately.

[29] The brother of the Plaintiff’s principal was also called for the Plaintiff. He was based in the Nadi shop at the time of the raid. About a minute or so after the raid he came down from his office to the shop. He saw a police officer telling all his customers to leave the shop. There were 6 or 7 officers. He approached one of them and was told that the Police had a search warrant that he was selling drugs. He said he sold clothes not drugs. He was not given any documents by the Police. The Police took clothes and packed them. The Hemp garment products. He said he was in a state of shock. He rang his brother. A search list was signed by the shop manager. Subsequently, there was gossip that their company was selling drugs and they were very embarrassed.

THE DEFENDANT’S WITNESSES & DOCUMENTS

[30] Before Defence Counsel called his witnesses Plaintiff Counsel objected to the admission of certain documents in the Defendant’s Bundle of Documents. These were documents 1 and 11 to 17. Defence Counsel argued that Counsel for the Plaintiff had initially agreed for the documents to be tendered and it was only during the trial that he withdrew his consent.

[31] Document 1 was a statement by an employee of the Fair Trading and Consumer Affairs given to Police on 17 February 1997. It said that on 6 August 1996 their Ministry received a fax from the General Manager of an Australian company complaining that some of their stock was stolen and being sold at the Sogo shops in Fiji. According to the statement, the officer then lodged a report with the Police in Suva and gave them a copy of the fax. This was in fulfillment of their obligations under the Fair Trading Decree. The trial Judge did not reject the document but ruled that very little weight would be given to it. Counsel for the Plaintiff argued that his client would be prejudiced because he would not be able to cross examine the maker of the statement as the witness was not being called. The maker of the statement had since migrated to New Zealand. The trial Judge ruled that the Defendant had failed to comply with section 4(1) (a) and section 11(3) of the Civil Evidence Act but allowed it in as evidence under section 4(4) of the Act, notwithstanding the non-compliance, with due weight to be given after hearing Counsel further on the issue.

[32] Documents 11 to 17 were the complainant’s letters of complaint to the Ministry of Commerce, under which the Fair Trading and Consumer Commission operated, of the alleged sale of their stolen garments in the Plaintiff’s shops here in Fiji. The trial Judge rejected them as evidence on the basis that they were different from Document no 1.

[33] Noting the way in which this case proceeded before the trial Judge I can understand why the Judge ruled in that way. With the greatest of respect, that is the wrong approach and so I would accept these documents not as proof that their contents were true but rather as proof of the fact that a complaint was lodged. Looking at these documents from that perspective, the documents are primary and not secondary or hearsay documents. Further, the fact of a complaint having being lodged from Australia was not contested and indeed conceded by the Plaintiff because of the way that the Plaintiff pleaded and ran its case. Also, the disputed facts in the PTC Minutes do not include the fact of complaint having being lodged from Australia. I would therefore admit these documents into evidence as proof that a complaint was lodged by the complainant to the Department of Fair Trading and the Department reported the matter to Police.

[34] The Defendant called an officer working for the Interpol section of the Fiji Police. He said the role of his office was to coordinate all overseas inquiries in all criminal matters on behalf of Fiji Police and to facilitate requests coming from Interpol counterparts in 185 countries. If a complaint originates from overseas, there are two ways this could happen, either directly from the overseas Interpol office to the Interpol office here or directly from overseas to the government department concerned then to the Director CID’s office. His evidence was limited to the general way the Interpol office operated because he was not familiar with this case not having worked in the Interpol office at the time of the raids.

[35] The second witness for the Defendant was the Sergeant of Police who was the investigating officer who attended to the search of the Suva shops. He explained the procedure for obtaining search warrants was, firstly, the Police receive information and fill in the warrant, then they take it to a JP or Magistrate to sign before they can conduct a search. He said they received a report from the office of Fair Trading regarding stolen items being sold in shops in Fiji. He confirmed that the search warrant dated 20 August 1996[5] was issued in this case. They conducted a search of the shop at Victoria Parade in Suva as per the warrant on 20 August 1996. He approached a Fijian lady and asked her who was in charge. He showed her the warrant and told her the purpose of the search. He said Police need only show the warrant and not give a copy. Three of them conducted the search. There were only a few customers. He asked the Fijian lady to ask customers to wait while they conducted the search. He did that just in case a customer bought and took away goods they were searching for. They searched for about 45 minutes, from 1500 hours to 1550 hours. They found some items in that shop. From there they went to the Cumming Street shop; from 1600 hours to 1630 hours. They followed the same procedure. He saw the person in charge, informed him of the purpose of Police being there, showed the search warrant then searched the premises. They searched for about 45 minutes and managed to find some items there. Police detained goods from both premises. He said Police always left a list of the goods they took. In this case, the Search Lists dated 20 August 1996[6] signed by him and countersigned by the owner’s representative. He said they do not notify in advance otherwise the person being searched might remove what the Police was looking for. He denied that this was a commando type raid. He said they were professionals and acted accordingly. They carried no arms. Police returned the items on 11 October in the same condition in which they took them. The items were kept at the exhibit room at the station. He spoke to the Fair Trading officer that made the report and took his statement which he lodged at CPS.

[36] The sergeant was cross examined on when the raid took place. It was put to him that the raid in fact took place on19 August 1996 and not 20 August 1996. He was adamant that it was 20 August and the Search Lists were given on 20 August too. I do not know why these questions were asked as this was one of the Admitted Facts in the PTC Minutes, It was also put to him that the search warrants were not based on proper information. He answered that if the information was not proper the JP would not have issued the warrants.

[37] The third witness for the Defendant was an Acting Assistant Superintendent of Police based in Nadi at the time. He said that he received a directive from CID Suva that there were some stolen items being sold at the Sogo shop in Nadi. The search warrant in this case[7] was prepared to allow Police to search the premises. They were searching for clothing which bore the trademark for Harvest Hemp Co. Ltd. He accompanied the officers that conducted the search. When they reached the shop, he called the gentleman in charge, showed him the warrant and explained the purpose of the search. He asked him to close the shop to allow a proper search for the items. Customers were allowed to go out to allow the officers to conduct a proper search. They searched the Main Street Nadi shop then went to the shop at the Sheraton Hotel. They followed the same procedure. They did not find anything at the Sheraton shop but seized some items from the Main Street shop. The Search List[8] for that shop was signed by the company representative, the principal’s brother, on 20 August 1996. The goods were detained for 2 months, returned on23 October 1996. He denied that it was a commando type raid. He said they were "only armed with the warrant and not arms used by commandos."

[38] In cross examination, the officer said there were 5 of them searching. He insisted that the search took place on 20 August 1996 and that search warrants were prepared before the search. There was one each for the two shops. He maintained that the information for the warrants was prepared beforehand. He explained in re-examination that after the searches all documents were returned to Headquarters and the search warrant for the Sheraton shop may have been lost because of time.

FINDINGS OF FACT FROM THE TRIAL EVIDENCE

[39] Having considered the witness’ testimony I find as a matter of fact that an officer of the Department of Fair Trading received information from Australia that the Plaintiff may have been selling stolen goods in its shops. Acting on that information received from the Department of Fair Trading, the Police obtained search warrants for search of the Plaintiff’s shops on 20 August 1996. I find also that all searches were conducted on 20 August 1996 under the authority of those search warrants, that the warrants were shown to the persons in charge of the various shops and the purpose of the searches were explained. I find also that it was necessary to close the shops being searched or to ask that customers leave whilst searches were being conducted. This was not a commando type raid.

[40] I also find that the reason supposedly given by the Police in the first place to the Plaintiff for the raid i.e., that the hemp garments were illegal because they could be smoked by customers as marijuana, is so ridiculous that it could not have been given as alleged by the Plaintiff’s witnesses. The two brothers should have realised that it was so mischievous that no one should actually believe it. They did not find out the truth until 8 days later. It is unfortunate that what appears to be acceptance of this explanation that has "smoke screened" their attitude towards Police and perception of this incident during the first week immediately after the raid and right up to the issue of these proceedings.

THE ISSUING OF THE SEARCH WARRANTS

[41] Section 103 of the Criminal Procedure Code, Cap 21 states:

"Where it is proved on oath to a magistrate or a justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by warrant (called a search warrant) authorise a police officer or other person therein named to search the building, ship, carriage, box, receptacle or place (which shall be named or described in the warrant) of any such thing and, if anything searched for be found, or any other thing which there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law."

[42] Thus the Fiji Police must convince the issuing Magistrate or Justice of the Peace that (1) an offence has or is in fact being committed in the Plaintiff’s outlets; or (2) they have reasonable suspicion that an offence has been committed in the Plaintiff’s outlets; or (3) that something which is necessary to the conduct of an investigation into an offence is in the Plaintiff’s outlets. Any of those three reasons is sufficient to ground the search warrant.

[43] It is obvious that whether an offence has in fact been committed or that the suspicion was in fact well founded after the search is not relevant. In other words, the outcome of the search does not come into the consideration as to whether there was "reasonable grounds" for the suspicion. An argument along these lines was rejected by this Court in Crystal Clear Video Ltd v Commissioner of Police [1988] FJHC 1; [1988] SPLR 130 (22 July 1988). It is just pure and simple common sense and logic.

[44] In R v ZOTTI No. SCCRM-01-325 [2002] SASC 164 (24 May 2002), the South Australian Court of Criminal Appeal, a case concerning the proof of "reasonable suspicion" as an element of the offence being considered, Lander J said this:[9]

"I have difficulty with the proposition that the prosecutor must establish a suspicion beyond reasonable doubt. A suspicion is something less than proof of a fact whether to the standard of the civil or criminal law.

In Shaaban Bin Hussien & Others v Chong Fook Kam & Another [1969] UKPC 26; (1969) 3 All ER 1626 at 1630 Lord Devlin speaking on behalf of the Privy Council said:

"Suspicion in its ordinary meaning is a state of conjecture or summise where proof is lacking; 'I suspect but I cannot prove'." "

[45] There can be no doubt that relying on information from the Victorian Police, or any other reputable source for that matter, is sufficient on its own to satisfy the requirements of section 103. It turned out in evidence that the initial source of the complaint was the complainant’s General Manager and subsequently the Department of Fair Trade. I think the Fiji Police was entitled to accept documentation which on its face was authentic unless there was some other evidence that it was otherwise. In this case, the complaint was the subject of investigation by the Victorian Police. The complaint was made to the Department of Fair Trade here in Fiji. In these circumstances the authenticity of the letter of complaint cannot be questioned.

[46] No issue was raised as far as I can ascertain from the trial Judge’s notes or from Counsel’s submissions that the complainant did no hold a genuine and honest belief that its clothing was being sold by the Plaintiff. The Plaintiff’s case in this aspect therefore fails. The Plaintiff is not without remedy of course. It should now be clear that the Plaintiff should have sued the original complainant, Harvest Hemp Co Pty Ltd, and/or the Victorian Police instead. I think the Plaintiff’s principal was so incensed by the way the Police conducted the raid and the subsequent aftermath that he lost his way.

THE SEARCH WARRANTS

[47] The Plaintiff alleges that the search warrants were not issued in accordance with the form required by section 103.

[48] The first Search Warrant (Defendant’s Documents page 21) is for the search of the Plaintiff’s Nadi shop. It is dated 20 August 1996 and states:

"SEARCH WARRANT

In the Magistrate’s Court at "Nadi", Fiji

To All Police Officers within Fiji

Whereas it is made to appear to me by information on oath laid this day by {Name and Rank of Police Officer}

Of "Nadi Police Station"

That there is reasonable ground for suspecting that certain property, namely, "assorted clothing & posters bearing the trademark "Harvest Hemp Co Pty Ltd." in respect of which an offence has been committed or which is necessary to the conduct of an investigation into an offence is in a certain place "Bulk Store" at "Nadi Town" of "Sogo Shop"

You are hereby authorised forthwith with proper assistance to enter the said "Bulk Store" if necessary by force, and there search for the property above mentioned and, if anything searched for be found, or any other thing which there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and bring it before this Court to be dealt with according to law.

Dated this "20th" day of "August" 19"96".

{Signed}

................................

Magistrate or Justice of the Peace."

[49] The second Search Warrant (Defendant’s Documents page 23) is for the search of the Plaintiff’s shops in Victoria Parade and Cumming Street in Suva. It is also dated 20 August 1996 and is in similar terms as in the first Warrant.

[50] Both warrants appear to be attested by two different Justices of the Peace or Magistrates and the Plaintiff does not contest their authenticity. The Plaintiff however contests that the place of search was not sufficiently described and the owner of the place to be searched was not correctly named. I have to disagree. The nature of the exercise does not, in my opinion, require the pedantic and strict attention to detail that the Plaintiff suggests. The Nadi warrant referred to "bulk store" and "Sogo Shop" and the Suva warrant referred to "shop" and "Sogo Fiji Ltd". I think there was sufficient connection between this detail and the Plaintiff and his shops that he could not have been mistaken. In any event, the Plaintiff’s complaint is not so much that Police searched the wrong place, but rather the "place" was not correctly named i.e. "bulk" store instead of "shop". I think there is no merit in this argument. I therefore find that the warrants are not invalid for the reasons advanced by the Plaintiff.

[51] The Plaintiff also contended that at the time of the raid, the Police did not have search warrants. It says that the raid was conducted on the 19 August 1996. I have commented on this above that it was an admitted fact that the raid took place on 20 August 1996. In any event, there is independent evidence to show this. The warrants were dated 20 August 1996. The Plaintiff’s solicitor’s letter to the Police dated 20 August 1996 referred to the raid as being conducted "yesterday" i.e. on 19 August 1996. The Search Lists that the Police had were dated 20 August 1996 and counter-signed by the Plaintiff’s representatives on that day. This is the difficulty that litigants and Courts face when cases are not brought to trial soon after the event so that witnesses’ memories are fresh. I am however, more inclined to believe that at the time of the raid the Police had search warrants and they were given to the Plaintiff’s representatives at the various places that they raided. It is understandable that in their haste to conduct such raids, people make mistakes as to dates and times. I also note that nowhere in the letter referred to above did the solicitors state that the Police had no warrants. The letter simply states: "The raid was illegal as it was done without reasonable cause and in total disregard to our client’s constitutional rights." The directors of the Plaintiff were in a state of shock at the time and that could have caused the confusion. The Plaintiff’s ensuing correspondence with the Police in 1996 did not complain of the lack of warrants. I therefore dismiss the Plaintiff’s contention in this regard.

DID THE POLICE SEIZE AND KEEP THE PLAINTIFF’S GOODS FOR TOO LONG?

[52] Did the Fiji Police seize and hold the Plaintiff’s items for too long?

[53] The law is as set out in the following passage from the Crystal Clear Video (supra) judgment of Fatiaki J (as he then was):

"The common law principles relating to the powers of police officers to seize goods in respect of which there is a reasonable suspicion that an offence has been committed has been recently restated by Lord Denning M.R. in Chief Constable of Kent v. V. (1982) 3 All E.R. 37 where he said at page 39:

I need say nothing today of the power of the police to arrest a person. I speak first of their power to seize or detain goods. This was considered by this court in Chic Fashions (West Wales) Ltd. v. Jones [1967] EWCA Civ 4; [1968] 1 All E.R. 229, [1968] 2 QB 299. That case showed that on entering a house with a search warrant or by the occupier's consent the police have power to seize goods which they reasonably believe to have been stolen or obtained fraudulently by deception. They can thereafter detain the goods for such time as is reasonably necessary to complete their investigations into the theft or fraudulent obtaining. If their investigations indicate that the goods have been stolen or fraudulently obtained by deception, the police can detain them further so that they can in due course be restored to their rightful owner and, where necessary, be produced as material evidence at the trial of an accused person. But, once it appears that the goods were not stolen or fraudulently obtained and are not needed as evidence, then the police should restore them to the person from whom they were taken: see Ghani v. Jones [1969] 3 All E.R. 1700, [1970] 1 QB 693; Malone v. Commissioner of Police of the Metropolis [1979] 1 All E.R. 256, [1980] 1 QB 49: and R. v. Uxbridge Justices, ex p. Commissioner of Police of the Metropolis [1981] 1 All E.R. 940, [1981] QB 829, unless in special circumstances the court directs them to be held until after the trial.

Counsel for the plaintiff company also specifically drew the Court's attention to the case of Ghani v. Jones (referred to in the above-quoted passage). That was a case in which the police had seized the defendant's passport and letters without a search warrant and had retained them in order to prevent the defendant from leaving the country pending police enquiries. In that case Lord Denning M.R. stated obiter at page 1705:

"...... I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied (which I have summarised as follows).

First: The police officers must have reasonable grounds for believing that an offence has been committed.

Secondly: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime or is the instrument by which the crime was committed or is material evidence to prove the commission of the crime.

Thirdly: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it.

Fourthly: The police must not keep the article for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. As soon as it is decided not to go on with it, the article should be returned.

Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.

The above passage was cited in the ruling of Tuivaga, J. (as he then was) in the case of R. v. Emori Kalou Toloi and Others 21 F.L.R. 105 at page 108."

[54] The longest time that the Plaintiff’s garments were held by the Police was about 3 months. Most were returned earlier. The investigations involved overseas persons. Applying these principles I find that in the circumstances, this was a reasonable time and not an inordinately long time and that it was necessary for the Police to seize and take the garments away for closer examination.

[55] The Plaintiff also complained that the Police should not have closed its outlets whilst conduction the raid or, in the alternative, had closed them for 45 minutes which was too long. Again, I find that Police action was reasonable and necessary in the circumstances.

[56] The Plaintiff also complained that the goods were not taken to a court as required by section 103 of the Criminal Procedure Code but instead taken to Police headquarters. The section does not put a time limit as to when this must be done. There is no merit in this submission.

WAS THERE TRESPASS TO GOODS AND PREMISES BY POLICE?

[57] Having found that the search warrants were validly issued and lawfully executed, the Plaintiff’s claim for trespass to its premises and goods must also fail.

[58] Counsel for the Defendant relied on section 20 of the Police Act, Cap 85, which provides as follows:

"(1) Where the defence to any suit instituted against any police officer is that the act complained of was done in obedience to a warrant purporting to be issued by a magistrate or justice of the peace, the court shall, upon production of the warrant containing the signature of the magistrate or justice of the peace and upon proof that the act complained of was done in obedience to such warrant, enter judgment in favour of such police officer.

(2) No proof of signature of such magistrate or justice of the peace shall be required unless the court has reason to doubt the genuineness thereof, and where it shall be proved that such signature is not genuine, judgment shall nevertheless be given in favour of such police officer if it is proved that, at the time when the act complained of was committed, he believed on reasonable grounds that such signature was genuine."

[59] Clearly, section 20 afforded the Defendant a statutory defence to this aspect of the Plaintiff’s claim.

WAS THERE ABUSE OF PROCESS AND MISFEASANCE IN PUBLIC OFFICE BY POLICE?

[60] Again, there cannot be abuse of process once the warrants are held to be valid and lawfully executed and similarly, by virtue of section 20 of the Police Act.

[61] Defence Counsel referred me to Bachu v Commissioner of Police [2004] FJCA 53; ABU0020.2004S (11 November 2004) where the Fiji Court of Appeal said:

"As will be seen from the High Court’s decision the principal ground for upholding the Respondents’ application was that the Court applied Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1988] 2 All ER 238; [1989] AC 53 which is settled authority for the proposition that while there is a general duty imposed on the police to enforce the criminal law an action for damages is not an appropriate vehicle for investigating the efficiency of the police force. Furthermore, as a matter of public policy the police are ordinarily immune from actions for negligence in respect of their activities in the investigation and suppression of crime.

That is not to say that in exceptional circumstances a police officer may not be held by reason of a sufficient relationship of proximity to owe the complainant a duty of care (Knightly v Johns [1981] EWCA Civ 6; [1982] 1 All ER 581; [1982] 1 WLR 349 and Costello v. Chief Constable [1998] EWCA Civ 3536; [1999] 1 All ER 550; (1999) 11 Admin LR 81) however the High Court found that on the facts of the present case as emerging and as emerged from the affidavit evidence the Appellants had not established such a relationship. We agree."

[62] Defence Counsel also referred to the case of Kumar v Commissioner of Police & Others [2004] Civil Appeal ABU 59/04 involving the shooting of the plaintiff police officer by an escaped prisoner after the 2000 coup. The facts and circumstances of that case were rather extraordinary so the case does not give much assistance in this case.

[63] I find that this is an ordinary case of Police investigation and with no exceptional circumstances to displace the general immunity afforded to Police conducting investigations.

[64] I have found that as a matter of fact the Police acted reasonably, so even if any duty of care existed, there can be no breach. I therefore find that both causes of action under this heading fail.

WERE THE PLAINTIFF’S CONSTITUTIONAL RIGHTS BREACHED?

[65] The Plaintiff claims that its rights under sections 10(1) and 10(2) of the Constitution of Fiji Decree of 1990 were breached.

[66] Section 10(1) provides:

"Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises."

[67] Section 10(2) provides for several exceptions to subsection 1, e.g., where the law provides for things to be done to promote a public benefit, or for the purpose of protecting the rights and freedoms of other persons, and so on. The proviso in subsection 2 puts a qualification to those laws and things done in that they must be reasonably justifiable in a democratic society.

[68] Having found that the search warrants were issued validly and that the Police acted reasonably, this head of claim must also fail.

THE FINAL OUTCOME

[69] The Plaintiff’s claim therefore fails on all causes of action.

COSTS

[70] This is not a complicated matter. The trial took only a day with 5 witnesses called. The documents were not large. I think an award of $1,000 costs to the Defendant is fair.

ORDERS

[71] The Orders are therefore:

• (a) The Plaintiff’s claim is dismissed.
  
• (b) Judgment is entered for the Defendant.
  
• (c) The Plaintiff pays the Defendant’s costs of $1,000 within 21 days.
  

Sosefo Inoke
Judge

At Lautoka
29 July 2009

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^[1] Plaintiff’s Document 3, page3.
^[2] Plaintiff’s Document 5.
^[3] Plaintiff’s Document 6.
^[4] Plaintiff’s Document 7.
^[5] Defendant’s Documents at p 23.
^[6] Defendant’s Documents at pp 25-33
^[7] Defendant’s Documents p 21.
^[8] Defendant’s Documents p 31.
^[9] At paras 46 and 47.