Ram v Commissioner of Police [2012] FJHC 1113; HBC589.2007 (8 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 589 of 2007

BETWEEN:

UDAY RAM
[Plaintiff]

AND:

THE COMMISSIONER FOR POLICE
[1st Defendant]

AND:

ATTORNEY GENERAL OF FIJI
[2nd Defendant]

Counsel: Mr. R. Chaudhry for the Plaintiff.
Mr. S. Raramasi for the Defendants.

Date of Judgment: 8th May, 2012

JUDGMENT

[1]. The plaintiff in this action claims damages from the defendants for wrongful arrest, unlawful detention, failure to inform the plaintiff of the reason for his arrest and malicious prosecution.

Background facts

[2]. On 1st December 2005, a pedestrian named Samuela Tuilevuka was knocked down by a taxi on Gaji Road. The taxi drove away without stopping.

[3]. The accident was investigated by Raiwaqa Police and a statement was recorded from an eye witness, who gave the registration number of the taxi involved in the accident as LT 3480.

[4]. Having conducted a search at the Land Transport Authority the police established that the taxi was owned by the plaintiff. Consequently, the plaintiff was informed of the same by the police and arrangement was made with the plaintiff to interview him at the Police Station.

[5]. On 8.3.2006 the plaintiff called at Raiwaqa Police station, where he was interviewed from 10.45 am to 12.10 pm and released. Subsequently, the plaintiff was summoned to appear before the Suva Magistrate's Court on 25.05.2006 and he was bailed out.

[6]. The plaintiff was charged with dangerous driving occasioning grievous bodily harm, contrary to section 97(4)(b)(c) and section 114 of the Land Transport Act 1998.

[7]. On 26.02.2007, the office of the Director of Public Prosecution made an application to enter a nolle prosequi and the Magistrate Court granted the application.

[8]. The plaintiff alleges that the 1st defendant acted hastily, negligently and without proper investigation, and the plaintiff was detained unlawfully for a period of one hour and twenty five minutes on 8.3.2008.

[9]. The defendants in their statement of defence denied that the plaintiff was arrested wrongfully. It is stated that the plaintiff was correctly arrested and lawfully charged following proper investigations into accident.

[10]. The defendant further stated that the plaintiff was not detained at the Raiwaqa Police Station but merely brought in for interview on the relevant charge, the plaintiff was made aware from the outset, the allegations brought against him and any action carried out by the 1st defendant was done within their powers and jurisdiction.

[11]. At the Pre-trial conference, the following facts were agreed to by the parties.

• The plaintiff was at all material times employed by the Ministry of Agriculture at the Sigatoka Research Station as a driver.
  
• That at all material time, the 1st defendant was, inter alia, the agency of the Government legislatively empowered to maintain law and order.
  
• On or about the 8th day of March 2006 the plaintiff was obtained, interviewed and subsequently summoned by the servants and/or agents of the 1st defendant on an allegation of dangerous driving occasioning grievous bodily harm to a pedestrian.
  
• That the plaintiff appeared in Suva Magistrate's Court on the charges against him and that such charges were subsequently withdrawn in Court by the Office of the Director of Public Prosecutions which found that the investigation and subsequent charge by the 1st defendant could not be sustained and was duly withdrawn in court.
  

[12]. In view of the above, the following issues are to be adjudicated by court.

1. Was the plaintiff arrested and detained by the servants and/ or agents of the 1st defendant?
   
2. Did the defendant fail to inform the plaintiff of the reason for his detention?
   

100. If so, was the arrest and the detention of the plaintiff unlawful?
     

4. Was the filing of charges against the plaintiff in the magistrate's court amount to a malicious prosecution?
   
5. Is the plaintiff entitled for damages?
   

[13]. At the trial the plaintiff and two witnesses gave evidence for the plaintiff whereas the defendants did not call any witness.

[14]. According to the plaintiff's evidence, on 01.12.2005 while he was on duty, he received a telephone call from Raiwaqa Police Station and was asked to come to the police station.

[15]. Subsequently, on 8.3.2006 the plaintiff went to the Police Station where he was interviewed.

[16]. The plaintiffs stated that the police officer who conducted the interview was very aggressive and threatened the plaintiff that the plaintiff would be locked up and also the particular officer alleged that the plaintiff actually caused the accident.

[17]. The plaintiff further stated that he did inform the police officer that he did not cause the accident and also showed his time card but the particular officer was not satisfied with all that.

[18]. The plaintiff's position is that on 01.12.2005 he was on duty at the Ministry of Agriculture and his vehicle bearing registration No LT 3480 was parked at his senior officer's resident in Sigatoka. The plaintiff further stated that despite informing the same to the police he was charged in the magistrate court for dangerous driving occasioning grievous bodily harm.

[19]. The evidence before me clearly established that the police summoned the plaintiff to the police station following an accident occurred on 1.12.2005.

[20]. The plaintiff was interviewed by the police on 8.3.2006 and subsequently charged in the Magistrates' Court of Suva. The plaintiff's criminal case was called in Magistrates' Court on 25.05.2006, 16.06.2006, 19.09.2006, 16.09.2006, 30.11.2006, 17.01.2006.

[21]. On 26.02.2007 an officer from the Director of Public Prosecution made an application to enter a nolle prosequi and the Magistrate allowed the application.

[22]. As a result, the plaintiff who was the accused in the Magistrates' Court was discharged.

[23]. As can be seen from the plaintiff's statement of claim and his evidence, the plaintiff's main allegation against the 1st defendant is that summoning him to the police station, subsequent recording of the statement and charging him in the magistrates court were all unlawful. Therefore, it is pertinent to analyze the facts and circumstances which led to the above events.

[24]. The evidence shows that the police had acted on information provided by an eye witness to the accident named Setoki Tamanivalu. He had given the registration number of the vehicle as LT 3480. The police subsequently found that the said vehicle was owned by the plaintiff and accordingly summoned the plaintiff to the police station and recorded a statement from him. The plaintiff in his evidence admitted that he was explained about the charge and was also explained his right to have a service of a solicitor.

[25]. In cross examination, plaintiff answered as follows:

Q. according to question 3, do you want any lawyer or any of your family member to be present during this interview and the answer was no?

A. My lord I did not request for counsel or any family member to be present because I had sufficient evidence which I tendered to the officer.

[26]. The above evidence clearly evinces that the police explained the plaintiff's right to have a solicitor or a family member to be present during his interview. Therefore, it is apparent that the plaintiff was treated properly at the police station and at no point he was subjected to any undue influence.

[27]. The circumstances under which the plaintiff was summoned to the police and subsequent recording of the statement by the police in my view do not reflect any unlawfulness as such. Further, there is no evidence that the plaintiff was subjected to any harassment whilst at the police station. Although the plaintiff stated that the police officer threatened him that he would be locked up, no complaint to that effect was made to any higher authority.

[28]. The plaintiff further stated that during the interview he was not allowed to leave the police station and was under arrest. One of the main allegations levelled by the plaintiff as manifested in the statement of claim is that he was arrested unlawfully by the police and detained there.

[29]. The evidence clearly shows that the police received credible information from an eye witness to the accident and conducted their investigations accordingly. The police did conduct a research in the LTA and verified that the vehicle number given by the witness belonged to the plaintiff. Therefore, the police have every reason to summon the plaintiff to the police station and interview him with regard to the alleged accident. The plaintiff produced his time card to the police but still the police charged him and instituted proceedings in the magistrate's court.

[30]. It must be noted that the information received by the police related to a hit and run accident. Therefore, the police was bound to investigate the accident and arrest the suspect if any. Therefore, the evidence before me does not demonstrate any unlawfulness in the sequence of events which led to the charging of the plaintiff in the magistrate's court.

[31]. The plaintiff alleges that he was detained unlawfully at the police station while he was being interviewed. The evidence shows that the plaintiff was in the police station from 10.45 am to 12.15 pm. The police interviewed and released him. Therefore, the plaintiff cannot be said to be detained unlawfully at the police station.

[32]. The police may have decided not to take the plaintiff's defence of alibi seriously but in my view the police had adequate information which warrant an institution of a criminal charge against the plaintiff. Once credible information is received by the police and after the investigation, if it appears to them that there is a prima facie case against a particular person it is the duty of the police to file charges in a court of law which has the jurisdiction to try the matter. It is the court which evaluates the evidence in particular the credibility of the witnesses of prosecution and defence and decides whether the plaintiff is guilty or not.

[33]. Therefore, in my opinion, the police had acted within their powers and there is no evidence to infer any unlawful detention or arrest.

[34]. The duty of the police when received such information was stated in Mahend Chand v. The Commissioner of Police & the A.G Civil Action 198 of 2004 as follows:

'In preventing and investigating crime, quick decisions have to be made. At that stage of investigation, the police are not nicely to assess whether there is proof beyond doubt. The police need to have a reasonable cause for suspicion that a crime has been committed. At that stage the police need not be satisfied as to the guilt beyond doubt. Reasonable suspicion may well be based on evidence which may be inadmissible in a court of law.'

[35]. When information in respect of an offence is received by the police and it appears to them that there exists a reasonable suspicion against a particular person, the police is bound to conduct further investigations and in doing so can summon the person, interview him, record a statement from him and also can detain him depending on the nature of the offence.

[36]. In considering the evidence in the present case, it is abundantly clear that the 1st defendant has reasonable and justifiable cause to summon the plaintiff and interrogate him. There is no evidence to show that the said interview was unlawful. Further, merely because the DPP entered nolle prosequi it does not amount to an acquittal but only a discharge and it shall not operate as a bar to charge him subsequently.

[37]. Section 49 of the Criminal Procedure Decree reads:

1. In any criminal case and at any stage of the case before conviction or judgment, the Director of Public prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption may enter a nolle prosequi, either by counsel instructed by him or her stating in court or by informing the court in writing that the State intends that the proceedings shall not continue.
   
2. ....
   
3. The discharge of an accused person in accordance with this section shall not operate as a bar to any subsequent proceedings against the accused person on the basis of same facts.
   

Malicious Prosecution

[38]. In order to succeed in a claim for malicious prosecution, the plaintiff must prove following facts:

1. That the defendant was actively instrumental in instituting criminal proceedings against the plaintiff;
2. That the proceedings must have terminated in favour of the plaintiff;

100. That the defendant acted without reasonable and probable cause;

4. That the defendant was actuated by malice; and
5. That the plaintiff suffered damage to his reputation, person or property.
   

[39]. Although, the proceedings against the plaintiff in the magistrate's court have been terminated consequent to entering a nolle prosequi by the DPP the plaintiff has failed to establish the existence of the other requisites mentioned above to succeed his claim for malicious prosecution.

[40]. Therefore, the fact that the DPP entered a nolle prosequi, in my view did not render the 1st defendant's act unlawful nor did it cause the prosecution to be malicious.

[41]. Further, the evidence before me does not demonstrate that the 1st defendant had acted maliciously in prosecuting the plaintiff in the magistrate's court nor it acted unlawfully whilst interviewing and detaining the plaintiff at the police station.

[42]. The police cannot be held responsible for questioning the plaintiff even if the information is baseless because the police had acted on a complaint made by an eye witness to the accident namely Setoki Tamanivalu.

[43]. The Supreme Court in Nirmala Wati v. Hussein & Co. Ltd [1986] FJSC 2, [1986] 32 FLR considered a similar incident and stated:

'Where a person complains to the police that an offence has been committed or indicates to them a person against whom he may have reasonable cause for suspicion and the complaint is baseless, but leads to the arrest and detention of the innocent person the maker of the complaint must accept full responsibility for the action taken on his behalf by the police.'

[44]. Having considered the above, I find that the plaintiff has failed to prove his claim against the defendants. Accordingly, I dismiss the plaintiff's action.

[45]. Cost is summarily assessed in the sum of $ 500.00

Pradeep Hettiarachchi
JUDGE

At Suva
8th May, 2012