Naidu, In re [1987] FJLawRp 24; [1987] 33 FLR 100 (17 July 1987)

[1987] 33 FLR 100

IN THE SUPREME COURT OF FIJI

RE NIKH1L NAIDU

[SUPREME COURT Rooney, J.-17 July 1987]

Civil Jurisdiction

Habeas Corpus - arrest suspect person detained - not given statement in writing of grounds not charged - no reasonable suspicion of criminality - insupportable reliance on the Public Emergency Regulations - Constitutional guarantee of personal freedom

J. Cameron for the Applicant

On 16 July 1987 Nazhat Shameem (applicant) sister-in-law of Nikhil Naidu (Naidu) applied under Order 54 Rule for a writ of Habeas Corpus in respect of the detention of Naidu who had surrendered himself voluntarily at the Central Police Station on the 9th July 1987 having learned that the Police wished to interview him. Thereafter apparently he was detained against his will in a cell at the Central Police Station and that detention continued up to the time the Court heard the return of the writ on 11 July 1987. The applicant said she had been unable to ascertain the reason for Naidu's detention, that he had not been charged with any offence, and had not been given reasons in writing therefor other than having been informed by Inspector Driver that he was being detained under section 17 of the Public Emergency Regulations. The respondent identifying himself as Mohammed Ishak, appeared to show cause. He confirmed the continued detention of Naidu.

He called inspector Moses Driver to explain the circumstances under oath. This evidence included that at 10.40 a.m. on 8 July 1987 a telephone call was received at the office of Air Terminal Services Limited, Nadi. The caller who claimed to speak for the "Freedom Fighters", said a bomb had been placed on (an aircraft) on an Auckland morning flight. Technicians were able to trace the call to a number which was Sedgwick (Fiji) Limited a firm of insurance brokers by whom Naidu was employed. Police officers thereupon went to that office and arrested some 17 members of the staff and took them to Central Police Station.

Inspector Driver took over the interrogation. He ascertained the voice which made the call was female. So he released all the male staff. Interrogation continued until the early hours of 9 July. At 0100 hours a person being interrogated said she had overheard Naidu at the office mention "Freedom Fighters". The witness did not explain that he had other information about "Freedom Fighters". He decided to interview Naidu. He sent a message; Naidu came to the Station that morning 9 July at 0950 hours with Dr Cameron. At 1100 hours Inspector Driver told Naidu he was arresting him on suspicion in regard to the telephone call made to Air Terminal Services. Naidu was confined to a cell. On cross-examination he agreed to being satisfied the telephone call had been correctly traced; but if there was any mistake as to the number, the whole enquiry would be groundless. He agreed Naidu told him he was (at the ANZ Bank and) not in at the time the call was made. The Inspector took statements but could get no substantiation of the first part i.e. that Naidu had been at the ANZ bank at 10.05 a.m. He said he was not familiar with s.17 (5) of the Regulations under which he had purported to act; it would have been practicable to give Naidu written reasons for his detention. This had not been done.

Naidu was not charged with any offence before the Court hearing but Inspector Driver had in mind a charge under the Telecommunications Act Cap. 173 related to menacing or false messages. Inspector Driver wanted Naidu held so he could search his house to see if anything there might show Naidu had made the call. Evidence by the applicant was given to which reference was been made earlier, which included the circumstances of arrest.

Held: Naidu to be released forthwith.

The learned Judge indicated he would give his reasons later on, for the Order for release he had made. Those reasons included the following, (letters being added).

A. Police may not under the Public Emergency Regulations arrest and detain persons with impunity; the right to personal liberty granted by s.5 of the Constitution still existed. That section (where relevant) read:

"5.-(1) No person shall be deprived of his personal liberty as maybe authorised bylaw in any of the following cases, that is to say-

(a).......

(b).......

(c).......

(d)......

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence;

(f).......

(g)......

(h)......

(i).......

(j)........

(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3) Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon a reasonable suspicion of his having committed, or bring about to commit a criminal offence,

and who is not released, shall be afforded reasonable facilities to consult a legal, representative of his own choice and shall be brought without undue delay before a court.

(4) Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further be held in custody in connection with those proceedings or that offence save upon the order of a court.

(5) If any person arrested or detained as mentioned in subsection (3)(b) of this section is not tried within a reasonable time, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person, or from any other person or authority on whose behalf that other person was acting.

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists in Fiji during that period."

B. The Court noted that pursuant to a proclamation of 14 May 1987 by the Governor-General there did eventually exist "a period of public emergency" as defined by the Constitution s.18 (6).

C. The Public Emergency Regulations gave the power to detain suspected persons in s.17 (1)set out in the Reasons for Judgment Rex v. Halliday [1917] UKHL 1; (1917) A.C. 260 (per Lord Atkinson) assists to determine the use which can be made of s.17.

D. The onus was on the respondent to prove the arrest and detention of Naidu was lawful. There has to be the reasonable suspicion referred to in s.17 (4). The Court then must decide if Sergeant Driver had had reasonable cause detain Naidu (Lister v Perriman (1970) 4 L.R.H. 521.)

E. Sergeant Driver did not reasonably suspect Naidu had acted or was about to act in any of the circumstances set out in s.17.

F. It remains the duty of a person affecting an arrest to give the reasons for a new detention and at the first reasonable opportunity (Christie v. Lechinsky [1947] UKHL 2; (1947) A.C. 573.)

G. The arrest of Naidu was not lawful. The Inspector had no warrant. He did not reasonably suspect him.

H. See also s.16 (2), designed for the protection of a detained person which read further

"..... shall as soon as reasonably practicable and in any case not more than seven days after the commencement of his detention, be furnished with a statement in writing, in a language he understands, specify in detail the grounds upon which he is detained"

Inspector Driver admitted this constitutional requirement was not compiled though it was reasonably practicable to do so.

Observations made on the acceptance or responsibility for illegal detention.

Superintendent Ishak to pay costs.

Cases referred to:

R v. Halliday [1917] UKHL 1; (1917) A.C. 260
Lister v. Perryman [1870] UKLawRpHL 9; (1870) 4 L.R. H.L. 521
Christie v. Lechinsky [1947] UKHL 2; (1947) A.C. 573

Reasons for Judgment

F.X. ROONEY, J.

On the 10th July 1987 the applicant applied to this Court under Order 54 Rule 1 for a writ of habeas corpus and sub jiciendum in respect of her brother-in-law, Nikhil Naidu. The supporting affidavit stated that on the 9th July Naidu had "surrendered himself voluntarily" to the Central Police Station at 0930 having learned that the police wished to interview him. He had been arrested and released on the previous day. He was detained in a cell at the Central Police Station against his will and the applicant said that she was unable to ascertain the reasons for Naidu's detention, other than being informed by Inspector Driver that he was being detained under Section 17 of the Public Emergency Regulations. The applicant alleged that Naidu was not charged with any offence and had not been given reasons for his detention in writing.

The writ followed I convened a special sitting of this Court on the morning of Saturday the 11th July. The respondent who identified himself as Mohammed Ishak, appeared to show cause. He confirmed the continued detention of Naidu in a cell at the station. He called Inspector Moses Driver to explain the circumstances under oath.

Moses Driver told the Court that he was investigating an allegation against Naidu. He said that there was information that at 1040 hours on the 8th July a telephone call was received at the office of Air Terminal Services Limited, Nadi. The caller said that she was speaking on behalf of the "Freedom Fighters" and that a bomb had been placed on an Auckland morning flight. Because Air Terminal Services had been the recipient of previous calls of a similar nature, the telephone line had been supplied with a mechanism which kept the line open until both telephone were replaced. This enabled post office technicians to trace the caller at telephone 311280. This was rented by Sedgwick (Fiji) Limited a firm of insurance brokers by whom Naidu was employed.

Inspector Driver said that a team of police officers went down to Sedgwick's office at Dominion House in Central Suva and arrested "about" 17 members of the staff and took them to the Central Police Station. At 1430 hours he took over the investigation. He ascertained from the telephone operator at Air Terminal Services that the voice on the telephone which delivered the threat or warning about the bomb was female. As a result, Inspector Driver released all the male staff, (including Naidu). The females were then subjected to interrogation which went on into the early hours of the following morning. At 0100 hours Driver learned from one of those luckless ladies that she had overheard Naidu at the office mentioning "Freedom Fighters".

Inspector Driver explained that he had other reports about the “Freedom Fighters”. Nine threatening letters, each accompanied by a round of live ammunition, had been posted to various persons under the name of the "Fiji Freedom Fighters". Driver decided he must interview Naidu. He enquired for him in the morning. Naidu came to the Police Station with Dr Cameron at 0950 hours on the 9th July.

At 1100 hours Driver informed Naidu that he was arresting him on suspicion in regard to the telephone threat made to Air Terminal Services. He directed that Naidu be kept confined in a cell while the Inspector continued with his enquiries. Some of the females were still in custody and the last one was released at 1330 hours. Driver said that he had not made a search which he intended to carry, out on the day that the Court was sitting.

Cross-examined by Dr Cameron, Driver said that he was satisfied that the telephone call had been correctly traced to Sedgwick's, but, that if there had been any mistake as to the number the whole investigation would be groundless.

He agreed that Naidu had told him that he was not in the office at the time the call was made to Air Terminal Services. Naidu's story was that at 10 am he had gone to Westpac Bank. He remained there until 10.35 when he went to the BNZ Bank, to meet the applicant. He remained there until 11 o'clock.

Driver took statements from the applicant, one Abdul Haniff of the BNZ Bank and a receptionist at Sedgwick's. He said "I could not get confirmation of his absence. His sister-in-law substantiated the allegation. Nothing on record, the time not acceptable according to Haniff."

Inspector Driver was not familiar with Section 17(5) of the Regulations under which he purported to act. He had not read Section l6 of the Constitution of Fiji. He agreed that it had been practicable to give Naidu written reasons for his detention but this had not been done.

Driver agreed that on Friday the 10th July he had indicated that Naidu would be released from custody that afternoon. He said that his time had been wasted by lawyers acting for Naidu and that this had "prevented" him from releasing him. He was not prepared to accept the truth of the applicant's statement, although he knew her for some years. He said she could be mistaken.

Naidu was not charged with any offence before the Court hearing. Driver had in mind the possibility of charging him with an offence created by Section 30 of the Telecommunications Act Cap: 173. This would cover menacing or false messages. A conviction under the section attracts a maximum penalty of three months imprisonment and a fine of $100.

Driver wanted Naidu held so that he could search his house in the hope he might find a document or anything which might show that Naidu had made the telephone call to Air Terminal Services.

That was the evidence led in opposition to the application. I ordered the immediate release of Naidu and I made an order for costs against Superintendent Ishak. As the Officer-in-Charge of the Police Station he must accept full responsibility if people are illegally detained there under his nominal control. I said at the time that I would give my reasons for making the orders in due course.

It was made clear to me that Inspector Driver is under the impression that under the Public Emergency Regulations, the police and military forces have the right to arrest and detain any person with impunity and that the right to personal liberty guaranteed by Section 5 of the Constitution no longer exists. He is mistaken. Fiji is not a police state where all are suspect unless proved otherwise.

I set out below Section 5 of the Constitution.

"5.-(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases that is to say:

(a) in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a court, whether in Fiji or else where, in respect of a criminal offence of which he has been convicted:

(b) in execution of the order of a court punishing him for contempt of that court or of another court or tribunal:

(c) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law:

(d) for the purpose of bringing him before a court in execution of the order of a court:

(e) upon reasonable suspicion of his having committed or being about to F commit, a criminal offence:

(f) under the order of a court or with the consent of his parent or guardian for his education or welfare during any period ending not later than the date when he attains the age of eighteen years:

(g) for the purpose of preventing the spread of an infectious or contagious disease:

(h) in the case of a person who is or is reasonably suspected to be of unsound mind addicted to drugs or alcohol or a vagrant for the purpose of his care or treatment or the protection of the community:

(i) for the purpose of preventing, the unlawful entry of that person into Fiji, or for the purpose of effecting the expulsion extradition or other lawful removal of that person from Fiji: or

(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Fiji or prohibiting him from being within such an area or to such extent as may be reasonably justifiable for the taking of proceedings against that person with a view to the making of any such order or relating to such an order after it has been made or to such extent as may be reasonably justifiable for restraining that person during any visit that he is permitted to make to any part of Fiji in which, in consequence of any such order his presence would otherwise he unlawful.

(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3) Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court: or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.

and who is not released shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court.

(4) Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connection with those proceedings or that offence save upon the order of a court.

(5) If any person arrested or detained as mentioned in subsection (3) (b) of this section is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person, or from any other person or authority on whose behalf that other person was acting.

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonable justifiable for the purpose of dealing with the situation that exists in Fiji during that period."

Subsection (7) above allows some inroads into the right to personal liberty, but, only to the extent that there exists a law which authorises the taking during a period of public emergency measures that are reasonably justifiable for the purpose of dealing with the situation that exists in Fiji during that period.

By virtue of the proclamation of the Governor-General-dated the 14th May 1987 (F.R.G. Vol. 114 No. 35) there does exist at present a "period of public emergency" as defined by Section 18 (6) of the Constitution. For the purposes of this case I shall presume that the Emergency Regulations made by the Governor-General on the 18th May (F.R.G. Vol. 114 No. 37) are valid and subsisting and constitute a law within the meaning of Section 5(7) of the Constitution (supra).

The power to detain suspected persons under the Public Emergency regulations (LN 1186/87) is contained in Regulation 17 which I set out in full below.

"17. (1) If any person upon being questioned by a police officer or a member of Her Majesty's Armed Forces fails to satisfy the police officer or member of Her Majesty's Armed Forces as to his identity address or place of employment, or as to the purpose for which he is in the place in which he is found, such police officer or member of Her Majesty’s Armed Forces may if he reasonably suspects that that person has acted or is about to act in a manner prejudicial to public safety or the preservation of the peace or is about to commit an offence against these Regulations arrest him and detain him pending enquiries.

(2) No person shall be detained under the powers conferred by this regulation for a period exceeding twenty-four hours except with the authority of a magistrate or a police officer of or above the rank of Inspector on whose direction such a person may be detained for a further period of forty-eight hours:

Provided that if such magistrate or police officer is satisfied that the necessary enquiries cannot he completed within such further period of forty-eight hours such magistrate or police officer as the case may be may direct such person to be detained for a further period not exceeding seven days.

(3) Any person detained under the powers conferred by this regulation shall be deemed to be in lawful custody and may be detained in any prison or any police station or in any other place authorised generally or specially by the Governor-General.

(4) Without prejudice to the provisions of paragraph (1) of this regulation, if any police officer of or above the rank of inspector reasonably suspects that any person has acted or is about to act, or is likely to act in any manner prejudicial to public safety or the preservation of the peace, or is about to commit an offence against these Regulations, he may arrest that person and detain him pending enquiries, and the provisions of paragraphs (2) and (3) of this regulation shall apply in the case of every person so arrested and detained as if he had been arrested and detained under the provisions of paragraph (1) of this regulation.

(5) The provisions of section 16 of the Constitution shall apply to any detention under the provisions of this regulation."

I approach Regulation 17 and the use which can properly be made of it in the light of the views expressed by Lord Atkinson in Rex v. Halliday [1917] UKHL 1; (1917) A.C. 260 at 271 to 273.

"... However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement. It is not contended in this case that the personal liberty of the subject can be invaded arbitrarily at the mere whim of the Executive. What is contended is that the Executive has been empowered during the war, for paramount objects of State, to invade by legislative enactment that liberty in certain states of fact. It was also urged that this Defence of the Realm Consolidation Act of 1914, and the regulations made under it, deprived the subject of his rights under the several Habeas Corpus Act. That is an entire misconception. The subject retains every right which those statutes confer upon him to have tested and determined in a Court of law, by means of a writ of Habeas Corpus, addressed to the person in whose custody he may be, the legality of the order of warrant by virtue of which he is given into or kept in that custody. If the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it, if intra vines, do not conferred by Magna Charta, for the simple reason that the Act and these Orders become part of the law of the land. If it were otherwise, then every statute and every intra vires rule or bylaw having the force of law creating a new offence for which imprisonment could be inflicted would amount, pro tan to, to a repeal of the Habeas Corpus Acts or of Magna Charta quite as much as does this statute of November 27, 1914, and the regulations validly made under it. Swinfen Eady L.J. most correctly points out that the provisions of the Defence of the Realm Consolidation Act of 1914 are of two kinds-punitive and preventive. Paragraph (a) of sub s. 1 of s. 1 contemplates and authorises the issue of regulations designed to prevent persons communicating with the enemy, or obtaining information for any purpose calculated to jeopardize the success of the forces of his Majesty or his Allies, or to assist the enemy. Paragraph (c) likewise contemplates that the regulations should prevent the spreading of false reports. Two conditions are, however, imposed: First, the regulations can only be issued during the war, and second, whatever they purport to do must be done for the purpose of securing the public safety and the defence of realm. It by no means follows, however, that if on the face of a regulation it enjoined or required something to be done which could not in any reasonable way aid in securing the public safety and the defence of the realm it would not be ultra vires and void. It is not necessary to decide this precise point on the present occasion, but I desire to hold myself free to deal with it when it arises."

In this case it was for the respondent to prove that the arrest and detention of Naidu was lawful under the authority vested in a police officer.

There had to be present at the time of the arrest and detention of Naidu a reasonable suspicion that he had acted or was about to act or was likely to act in any manner prejudicial to public safety or the preservation of peace or that he was about to commit an offence against the Public Emergency Regulations. His arrest and detention had to be reasonably justifiable for the purpose of dealing with the present situation.

It is for this Court to decide whether Inspector Driver has reasonable cause to detain Naidu under Public Emergency Regulation 17 [Lister v. Perriman [1870] UKLawRpHL 9; (1870) 4 L.R.H.L. 521]. I was satisfied on hearing the evidence adduced that the Inspector did not reasonably suspect that Naidu had acted or was about to act in any of the circumstances defined by Regulation 17.

These proceedings are not directly concerned with the events which took place on the 8th July at the office of Sedgwick. However, Naidu was one of the seventeen people arrested on that occasion and the action taken against these people calls for some comment. The identity, of the presumed female who made the call about the bomb to Air Terminal Services is presently unknown. It may or may not have been one of the seventeen people arrested and taken away to the Central Police Station.

The offences created by Section 30 of the telecommunications Act are not of a nature that a suspect may he arrested without a warrant. There is nothing in the Public Emergency Regulations which alters that position. Even if it were otherwise and a right to arrest a suspect without a warrant existed, no police officer or soldier could have had any reasonable suspicion against any one of the persons arrested. The action taken against them was an arbitrary abuse of power unlawful unconstitutional. It was a shameful episode and whoever ordered the operation requires to be disciplined.

Inspector Driver must accept full responsibility for the subsequent illegal detention of the persons concerned. He is accountable for the insult to the dignity of those detained and the needless distress and anxiety which it, may be assumed he caused to the families of his victims. It is for those presently in authority to ensure that this great wrong is properly righted and that incidents of this nature are not repeated.

To return to the detention of Naidu, there was no evidence of any kind against him on the charge suggested by Inspector Driver. There was no evidence that he was at his office at the time the telephone call was said to have been made from it, Naidu was not required to satisfy Inspector Driver or anyone else that he was not there. The information that he talked in the office about "Freedom Fighters" has nothing to do with it. The context of his alleged remarks it not given. Anyone in this country is free to talk and comment upon current events without running the risk of being locked up until he can prove his innocence of wrongdoing. It is obvious that Inspector Driver harbours dangerous delusions about his powers as a police officer. The purpose of the Public Emergency Regulations is to maintain law and order and not to subvert the constitutional rights of the people of this country.

Inspector Driver was unaware of the existence of Regulation 17(5) which clearly demonstrates that the constitutional rights guaranteed by the Constitutional have not been taken away.

Section 5(2) of the Constitution requires that a person who is arrested or detained shall be informed as soon as reasonably practical, in a language that he understands of the reasons for his arrest or detention. This re-states the common law. It is a condition of a lawful arrest that the party arrested should know on what charge or suspicion of what crime he is arrested. Even if circumstances exist which may excuse, it is still the duty of the person effecting the arrest to give the information at the first reasonable opportunity after the arrest. [Christie v Leachinsky [1947] UKHL 2; (1947) A.C. 573]. It would not be sufficient just to mention Regulation 17 to a suspect arrested under it. A reference to a statute or a regulation with nothing more would not meet the requirement that the person arrested be informed in "a language that he understands" of the reason for his arrest. The arrest of Naidu was therefore not lawful. The Inspector had no warrant. He did not reasonably suspect him.

Section 16 of the Constitution is designed for the protection of persons detained under emergency laws. It goes further than Section 5(2) in that it requires that the person detained-

"...shall as soon as reasonably practicable and in any case not more than seven days after the commencement of his detention, be furnished with a statement in writing, in a language he understands specify in detail the grounds upon which he is detained.” I have added the emphasis.

Naidu was in police custody from the morning of Thursday the 8th July. Inspector Driver admitted that that the above constitutional requirement was not complied with, although it was reasonably practicable to do so.

Nothing more remains to be said. But, the public in Fiji are entitled to the assurance, which I now give, that the Public Emergency Regulations do not extinguish their constitutional rights. Subject to all lawful exceptions the right to personal freedom remains, including the right to seek compensation from any person or authority responsible for an unlawful arrest or detention.

Rooney, J.