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Bandy v Commissioner of Police [2022] FJHC 714; HBC49.2016 (11 November 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION


Civil Action No. 49 of 2016


BETWEEN:


JAMES WELDON BANDY aka JIM BANDY
and KYOKO BANDY both of “Also Island”
PLAINTIFFS


AND:


THE COMMISSIONER OF POLICE
FIRST DEFENDANT


THE ATTORNEY-GENERAL
SECOND DEFENDANT


Before:
Hon. Chief Justice Kamal Kumar


Solicitors:
Plaintiffs in Person
Mr J. Pickering for the Defendants


Date of Judgment:
11 November 2022


JUDGMENT


Introduction/Chronology of Events

  1. On 29 August 2016, Plaintiffs in person, filed Writ of Summons with Statement of Claim claiming the damages for alleged breach of constitutional obligations and negligence.
  2. On 8 September 2016 and 29 December 2016 the Defendants filed Acknowledgement of Service and Statement of Defence respectively.
  3. On 7 February 2017 the Plaintiffs filed Reply to Defence.
  4. On 1 November, 2017 the Plaintiffs filed Summons for Directions and on 27 November 2017, being returnable date of Summons for Direction, Order in terms of Summons for Direction was made.
  5. On 1 December 2017 the Plaintiffs filed Affidavit Verifying List of Documents (AVLD).
  6. On 11 December 2011 the Defendants filed AVLD.
  7. On 2 March 2018, Plaintiffs filed Summons to Enter Action for Trial.
  8. On 12 March 2018 the Plaintiffs were directed to file Copy Pleadings with Supplementary AVLD and this matter was adjourned to 19 March 2018.
  9. On 12 March 2018 the Plaintiffs filed Copy Pleadings and Supplementary AVLD.
  10. On the same day the Defendants filed Supplementary AVLD.
  11. On 19 March 2018, this matter was adjourned for trial on 21 and 22 June 2018.
  12. On 13 June 2018 the Plaintiffs filed Supplementary AVLD.

Background Facts

  1. The Plaintiff being Fiji Citizens operated business under the name of ‘Also Island’ a grocery shop, sold fish in Labasa produced virgin coconut oil and were boat builders.
  2. The Plaintiffs employed one Saiyad Rizwan as driver sales and purchase agent.
  3. The Plaintiffs alleged that during his term of employment from 2006 to 2010, Sayad Rizwan:-
  4. On or about 4 August, 2010, the Plaintiffs lodged a complainant against Sayad Rizwan at Labasa Police Station and on 4 and 5 August 2010 gave their statement to the Police.
  5. The Plaintiffs complaint was registered under No. 232/2010 at Labasa Police Station.
  6. Northern Regional Command Center wrote to the Plaintiffs (undated letter) informing the Plaintiff’s that their complaint was being registered and investigations are being handled by Regional Investigations Unit.
  7. On 10 August 2010, letter was written by Regional Investigator North to the Firstnamed Plaintiff requesting for certain information.
  8. On 7 October 2010, the Investigation Officer wrote to the Plaintiffs informing them that they tool statements from certain people and the investigation is continuing.
  9. On 26 January 2011, the Director Discipline and Ethics Division wrote to Secondnamed Plaintiff in respect to her letter dated 30 September 2010, informing her that investigation is underway and for her to liaise with Inspector Lomani.
  10. In 2011, the Plaintiff’s filed civil claim in Labasa Magistrates Court against Sayad Rizwan and on 6 October 2015, obtained judgment against Sayad Rizwan in the sum of $19,995.00.

Documentary Evidence


  1. By consent documents listed in Agreement Bundle of Documents dated and filed on 13 March 2018, excluding item No. 22 were listed as Exhibit 1 to 25.

Plaintiffs Case

  1. The Firstnamed Plaintiff gave evidence himself and did not call any other witness.
  2. Since, the Plaintiffs claim relate to alleged breach of duty care against the Investigation Officers in relation to complaint lodged against Sayad Rizwan and subject to Police Docket No. 232/2010, it is prudent evidence after lodgment complaint be referred to in this Judgment.
  3. The Firstnamed Plaintiff during examination in chief gave evidence that:-

27. During cross-examination the Firstnamed Plaintiff:-

(i) Stated that Rizwan was a trusted employee.
(ii) Stated that him and the Secondnamed Plaintiff went to Labasa Police Station (LPS) on 4 and 5 August 2010 to lodge report about discrepancies in Sukhi purchase, fish sale and use of money from their float account.
(iii) Stated that when they sold fish to Richard Duda, Gold Hold, he would issue receipts, but when they sold to others no receipts was issued.
(iv) Stated that he could recall Rizwan giving him receipt for sale of fish when it was sold to Gold Hold.
(v) Stated that trip sheets were drawn up in comparison to what Rizwan said and he received and what was paid by Gold Hold.
(vi) Stated that as for Sukhi, the Secondnamed Plaintiff and Rizwan purchased it from Faiyaz who during investigation stated that he never charged more than $70 per kg.
(vii) In reference to Exhibit 22 stated that Rizwan entered the amount.
(viii) Stated that Exhibit 23 has Rizwan’s signature (1st page) and Rizwan’s handwriting.
(ix) Agreed that Magistrates Court Judgment (Exhibit 19) was in their favour and stated that Rizwan paid only $700 which resulted in bankruptcy action.
(x) Stated that he received letter dated 10 August 2010 (Exhibit 21 – page I) which was relevant to his complaint.
(xi) Stated that he could not confirm receiving letter dated 7 October 2010 but could have received it.
(xii) When it was put to him that it was correct to say he was advised of the progress of the case he stated that he received letter on 7 October, 2010.
(xiii) Stated that he was advised that his complaint was being looked at.

Defendants Case

  1. Defendants called William Lomani of New Town, Matei, Taveuni, Retired Police Officer as their First Witness (DW1).
  2. DW1 during examination in chief gave evidence that:-

30. During cross-examination DWI:-

(i) Stated when files are closed, they are taken to the archives by the Registry.
(ii) Stated that when investigation is carried out, DCO would analyze the dockets to see if matter is to proceed or is to be closed.
(iii) Stated that he did not have the authority to terminate or close a case.
(iv) Stated that DCO – Northern at that time was ASP Salaseini.
(v) When asked what made him believe file was closed, he stated that when he retired in 2014, file was closed and that when a file is closed it can be re-opened if new evidence comes about.
(vi) Stated that he investigated the case and after discussing the case with DPO he recommended to DCO – Northern to close the file which she did.
(vii) Stated that once file is closed staff stamps it for DCO – Northern to sign.
(viii) Stated that he retired on 14 June 2014 and according to him suspect was interviewed who denied the allegation, he then discussed with DPO before finally recommending to DCO – Northern to file away the case.
(ix) Stated that after his retirement Inspector Iowane approached him saying that they were looking for PEP 232/10 which could not be located.
  1. Defendants second witness was Iowane Cadriva of Savusavu, Police Officer (DW2).
  2. During examination in chief DW2 gave evidence that:-

33 During cross-examination DW2:-

(i) Stated that he did not at any time see PEP 232/20 docket created by Lomani.
(ii) Stated that he prepared his docket based on information/docket given to him by DCO – Northern and from the file.
(iii) Agreed that documents he gave to DCO – Northern contained plenty Trip Sheets.
(iv) When asked as to when he had plenty Trip Sheets why only 2 count he explained that:-
(v) Incident went back to 2008 – 2009.
(vi) People were reluctant to give statements because they had forgotten or for other reasons.
(vii) One sukhi seller gave statement
(viii) Stated that information he had, obtained were information on fish transactions and float account.
(ix) Stated that file was sent to DPP and result was they had to charge for two (2) counts.
(x) Recalled notifying Kavai and Secondnamed Plaintiff and then giving her summary sheet of Sukhi, Fish and Float Account.
(xi) Stated that was what charges were to be laid for and he gave his findings only.
(xii) Stated that he obtained statement from Faiyaz and he was the person selling sukhi.
(xiii) Stated that he began his investigations after Kavai and Secondnamed Plaintiff saw him.
  1. Defendants Third Witness was Viliame Sogari of Waiqele Labasa, Inspector of Police (DW3):-
  2. During examination in chief DW3 gave evidence that:-

she would go to his office.

(xvii) Police Department did not withhold information about Plaintiffs

complaint and nothing was done by Fiji Police Force to hide or hinder the

complaints.

(xviii) Kavai who is assisting Firstnamed Plaintiff with Courts

approval was part of Investigation Team and recorded the interview.


36. During cross-examination DW3:-

  1. Stated that second docket was necessary because the first docket was missing.
  2. Stated that in 2015, it was discovered that the docket was missing.
  3. When asked as to why there is no record of activities from 2010 to 2015 in the Register (Exhibit P25) he stated that action taken is recorded in the docket and not in Crimes Register.
  4. When it was put to him that since Lomani’s docket was lost there is nothing to prove that any action taken between 2010 to 2015 he stated that it was recorded in Lomani’s docket which was brought to him when he advised that matter is of civil nature and such advise he could only give after citing documents in the file / docket.
  5. When asked if complaint for financial advantage by deception would be civil or criminal he stated that alleged incidents occurred prior to 2009 when we had Penal Code which did not make provision for such offence but after 2009 we have Crimes Act which makes it an offence.

Whether First Defendant owed Duty of Care to the Plaintiffs.

  1. In Hill v Chief Constables of West Yorkshire ([1988] 2 ALLER 238 Lord Keith of Kinkel at page 240 (paragraph g to h) states as follows:

“The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.


There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] I ALL ER 851, [1982] I WLR 349 and Ribgy v Chief Constable of Northamptonshire [ 1985] 2 ALL ER 985, [1985] I WLR 1242. Further, a police officer may be guilty of criminal office if he wilfully fails to perform a duty which he s bound to perform by common law or by statue: see R v Dytham [1979] 3 ALL ER 641, [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.


By common law police officers owe to the general public a duty to enforce the criminal law: see R v Metropolitan Police Comr, ex p Blackburn [1968] I All ER 763, [1968] 2 QB 118. That duty may been force by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed whether particular lines of inquiry should or should not be followed and even matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying on chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligations is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public”.


  1. This statement was adopted and applied in Devi v Nadan & Ors (2013) HBC 30

of 2012 (23 August 2013).

  1. There is no doubt that Police Officers do owe a duty to members of the public to enforce the Criminal Law and how that duty is to be discharged is subject to the wide discretion of the First Defendant as the Commissioner of Police Force (Hill Case) and / or his delegated representative.
  2. In this instance once the complaint was lodged to the Police Officers they were

required to conduct certain investigations and assess the evidence to see if charges could have been laid against the suspect.


Whether Defendants were Negligent and Breached the Duty of Case Owed to the Plaintiffs.


  1. This court accepts what is stated in Hills case in respect to the exercise of wide

discretion bestowed on the First Defendant as to how the resources will be employed and whether certain investigations should be followed.

  1. To assist the First Defendant and his Officers, there is a guideline in respect to

instituting criminal cases and prosecuting it.

  1. Guidelines 5.1, 5.2 and 5.3 of Prosecution Code provide as follows:-

“5.1 The test for prosecution: No person in Fiji shall be prosecuted unless there is sufficient evidence and it is in the public interest to prosecute...

“5.2 The First step is to be sure that there is a reasonable prospect of a conviction. This is an objective test, which includes an assessment of the reliability of evidence, and the likely defence case. The test is whether a court, [properly] directed in accordance with the law is more likely than not, to convict the accused of the charge alleged. ...

“5.3 Prosecutors should not ignore evidence because they are not sure whether it can be used or is reliable. They should examine it closely when deciding if there is a reasonable prospect of conviction.”

5.15 New Zealand Prosecution Guidelines which is similar to our Prosecution Code was subject to discussion by Supreme Court of New Zealand in Osborne v Worksafe New Zealand [2018] 1 NZLR 444. The Court stated as follows:-

“[28] The Guidelines provide that prosecutions should be initiated or continued only if the “test for prosecution” is met. There is provision for review of the charges before trial to determine whether the charges should be prosecuted or, among other things, withdrawn.

[29] The Guidelines describe the “test for prosecution” as being met if:

5.1.1 The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and

5.1.2 Prosecution is required in the public interest – the Public Interest Test.

[30] The Guidelines require each test to be “separately considered and satisfied before a decision to prosecute can be taken”. They are to be considered in sequence, with the evidential test being satisfied before consideration of the public interest test.

[31] The evidential test is met where “there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence”. Credible evidence is evidence which is “capable of belief”. The Guidelines provide that only evidence which is or reliably will be available and legally admissible can be taken into account in reaching a decision to prosecute. This evidence must be capable of meeting the criminal standard of proof. What is required by the evidential test is that “there is an objectively reasonable prospect of a conviction on the evidence”. (emphasis added)

  1. DW1’s (William Lomani) evidence which this Court has no reason to doubt was that the Plaintiffs initially lodged a complaint against the suspect in respect to contract they had with the suspect in relation to motor vehicle registration no. DV 704.
  2. This is confirmed by statements given by the Plaintiffs to the Labasa Police Station on 4 and 5 August 2010 (Exhibit’s 1 and 2).
  3. Once DW 1 and DW 3 informed the Plaintiffs that the case was of civil nature, Plaintiffs then lodged a complaint about the suspect keeping monies for himself from sale of fish, purchasing sukhi at prices lower than that the Plaintiffs were told to be the price and withdrawing monies from Plaintiffs floating account for his own use and benefit.
  4. Plaintiffs did institute civil proceedings against Rizwan in Magistrates Court Labasa in respect to vehicle contract and obtained Judgment in the sum of $19,995.00 (Exhibit 20).
  5. Police Docket PEP 232/10 was created and investigation was conducted by Regional Investigation Unit / Northern.
  6. The Plaintiffs were kept informed about the progress of the investigation and there is evident from the evidence of DW 1 and DW 3 which this court accepts as credible evidence and is also supported by Exhibit P21 (Pages 1 to 5).
  7. Court accepts Lomani’s evidence that after he carried out the investigation and discussed the evidence with Divisional Prosecuting Officer – Northern (DW 3) after which he recommended closure of the docket PEP 232/10 due to insufficient evidence to the Divisional Crime Officer Northern who accepted his recommendation and closed the file.
  8. This evidence is corroborated by DW 3 the then DPO, Northern.
  9. This Court finds that DW 1 (Lomani) and DCO – Northern ASP Salaseini were in no way negligent when they closed the file for lack of sufficient evidence.
  10. It is DW 1’s evidence that once a file is closed it can be re-opened if further evidence is available.
  11. PEP 232/10 was re-opened after the Secondnamed Plaintiff who according to Firstnamed Plaintiff was actually involved in promoting women’s events went to meet and congratulate DCO Northern ASP Salaseini Vakaturagani on her appointment.
  12. In December 2014 or thereabout DW2 was appointed as the Investigating Officer.
  13. The original docket PEP 232/10 could not be located and as such the investigating team had to create duplicate file from documents given to them by the Plaintiffs and fresh statement taken from Faiyaz Jawan and Mohammed Abdul.
  14. DW2 also interviewed the suspect Rizwan.
  15. DW2 through DCO Northern submitted all the document to Director of Public Prosecutions for his sanction and advice (Exhibit 21 (pages 24 – 26).
  16. ODPP upon perusal of documents presented to them advised DCO – Northern to lay charges for two counts relating to purchase of sukhi.
  17. Based on facts and evidence obtained during the investigation after PEP 232/10 was re-opened, the First Defendant and / or his officers acted justly and fairly.
  18. Based on DW3’s evidence that Secondnamed Plaintiff would mostly call into his Office, this Court dismisses Plaintiffs allegations that they were not informed of action taken by the investigating team at Labasa Police Station.

Damages

  1. Even if this Court would have found that the First Defendant’s Office was negligent no damage would be awarded to the Plaintiffs for the fact that they failed to provide particulars of damage in their Statement of Claim or failed to provide any tangible evidence as what damages Plaintiffs had actually suffered.
  2. The Miscellaneous Court finds the action of Firstnamed Plaintiff and Kavai Vunidogo to be dubious and unconsiderable for the following reasons:-
    1. Kavai Vunidogo was employed by Fiji Police Force when the Plaintiffs complaint was being investigated.
    2. Kavai Vunidogo after leaving Fiji Police Force started working for the Plaintiff and gave certificate in respect to complaint lodged by Plaintiffs (Exhibit 10).
    3. The Firstnamed Plaintiff sought Court’s leave for Kavai Vunidogo to assist him in conducting the trial without informing the Court that he was part of the investigating team.
    4. This Court in good faith and in consideration of the Firstnamed Plaintiffs age permitted Kavai Vunidogo to assist the Firstnamed Plaintiff.
    5. Kavai Vunidogo’s involvement in the investigating team was only brought to the Court’s attention at the end of DW3’s evidence.

Conclusion

  1. This Court is of the view that the Plaintiff’s claim be dismissed and struck out on the grounds that Plaintiffs have failed to establish that Defendants acted negligently.

Cost

  1. This court takes into consideration that trial lasted for two (2) days, parties filed Agreed Bundle of Documents to shorten trial time and filed submissions.

Orders

  1. This Court makes the following orders:-
    1. Plaintiffs claim is dismissed and struck out;
      1. Each party bear their own costs of this action.

.......................
K. Kumar

CHIEF JUSTICE

At Suva


Solicitors
Plaintiffs in Person
Office of the Attorney-General of Fiji for the Defendants

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