IN THE KIRIBATI COURT OF APPEAL 	]  	Civil Appeal No. 3 of 2017
CIVIL JURISDICTION			]HELD AT BETIO				]REPUBLIC OF KIRIBATI			]

BETWEEN	TERAOI IONATAN (AS 
	ADMINISTRATOR OF THE ESTATE 
	OF BWEBWENIMARAWA TERAOI)	APPELLANT			
AND	ATTORNEY-GENERAL (IN RESPECT
	OF THE COMMISSIONER OF POLICE)	 RESPONDENT

Before:	Blanchard JA		
Handley JA 
Hansen JA
Counsel:		Raweita Beniata for appellant
Ruria Iteraera for respondent
			Date of Hearing:	11 August 2017
Date of Judgment:	16 August 2017	

JUDGMENT OF THE COURT

Introduction
[1]	On 1 June 2013 Bwebwenimarawa Teraoi was arrested for being drunk and disorderly.  He was taken to the Bairiki Police Station and placed in a cell.  He was later found dead in the cell.  His estate claims to recover damages from the Attorney-General sued on behalf of the Kiribati Police Service for negligently failing to keep the deceased safe while in custody.  After trial before the Commissioner of the High Court, the claim was dismissed.  The Administrator of the deceased’s estate appeals against the Commissioner’s decision.

Further background
[2]	After the deceased was arrested (for the second time that day) and taken into custody, the police, following standard procedure, removed his outerwear, leaving him wearing only underpants.  The evidence was that he was wearing what were described as common or normal underpants with boxer shorts on top.

[3]	Soon after he was detained the deceased asked to go to the toilet.  He was escorted there by Senior Constable Tawita Kairoronga who then returned him to his cell and locked the door.  Senior Constable Tawita deposed that he spoke briefly to the deceased and then went outside for a smoke.  He had been away for about ten minutes when he was told by another officer that the deceased had been found dead in his cell.  He was told the deceased had been found with one leg of his underpants tied to the cell window bars and the other leg around his neck.  When he saw the body, the deceased was wearing the boxer shorts.

[4]	The only other police officer to give evidence was the Officer Commanding the Bairiki Police Station, Inspector Kaotan Moantau.  He saw the deceased when he first arrived but left for home a short time later.  He confirmed that it was standard procedure for prisoners on remand to have their outer clothes removed in order to minimise the risk of self-harm.  He was not in a position to shed any light on the circumstances of death.

[5]	Evidence for the plaintiff was given by the deceased’s wife, 
Erenoa Koura, his brother, Katongatonga Teraoi, and his father who is the Administrator of his estate.  Erenoa was adamant that he was not wearing boxer shorts when he was arrested and never did.  She said when he left the house he was wearing trousers.

[6]	Erenoa also said that when the deceased’s body was returned to the house, she noticed a mark on his neck that she believed to have been made by the buckle of his belt.  Her evidence was confirmed by the deceased’s brother and father.  Katongatonga took a photo of the marks.  It was later shown to Inspector Kaotan.  While being examined by another police officer the photo was accidentally deleted.

[7]	There was no evidence of the body of the deceased being medically examined or an autopsy conducted.  An affidavit by a doctor tendered on behalf of the Attorney-General explained that death by hanging can lead to death by spinal shock which is normally instantaneous or by suffocation which takes longer.  On the basis of facts he was asked to assume as reported to Constable Tawita, he thought death could have resulted from spinal shock.

Commissioner’s decision
[8]	The Commissioner was faced with two conflicting theories as to how death occurred.  For the plaintiff (appellant) it was contended that the evidence of the buckle mark on the deceased’s neck supported the inference that someone entered his cell and strangled him with his own belt.  Not surprisingly, the police theory was that the deceased committed suicide using his underpants.

[9]	The Commissioner was unable to accept either theory.  She put the position succinctly:

“After careful consideration of the evidences above, one thing is very clear; how the deceased died whilst in the custody of the defendant is not known to this court”.

[10]	The Commissioner pointed out that the evidence of the police officers as to how death occurred was hearsay and inadmissible.  The police officer who found the deceased was not called to give evidence.  The doctor’s evidence, reliant as it was on inadmissible evidence, took the matter no further.

[11]	The Commissioner acknowledged that the evidence of the belt mark must be accepted.  The plaintiff’s evidence on the issue survived persistent cross-examination and that of the deceased’s wife and brother was unchallenged.  (They were not called for cross-examination).  However, the Commissioner found that the mark seen on the deceased’s neck could have had other causes.  It was not in itself sufficient to support an inference that someone had entered the deceased’s cell and strangled him to death with his belt.

[12]	In the absence of proof of how death occurred the Commissioner was unable to uphold either the allegation that the police had failed to keep the deceased safe from harm caused by others or from harming himself.  The claim was accordingly dismissed.

Grounds of Appeal
[13]	In his notice of appeal the appellant relied on two grounds (which we paraphrase):

•	The High Court erred in finding that there could be explanations for the mark on the deceased’s neck other than its being caused by strangulation with his belt.

•	The High Court erred in finding that the police were not negligent in leaving the deceased on his own.

[14]	Mr Beniata said in submissions that the first ground would be abandoned although he argued the appeal on the basis that the murder of the deceased by a person entering his cell remained an available option in considering his key submission that police had not discharged their duty to keep prisoners safe from foreseeable harm.  He argued that the deceased should not have been permitted to keep wearing two pairs of underpants and left alone in his cell.

Discussion
[15]	We are in full agreement with the Commissioner that the evidence does not establish how the deceased died.  The evidence that he committed suicide is inadmissible hearsay.  The evidence of the mark on the neck is insufficient to support an inference that death was caused by strangulation.  We are left, like the Commissioner, with a number of unanswered questions.

[16]	This is unsatisfactory.  A death in police custody is a very serious matter.  We would expect it to be fully investigated and the results of the investigation shared with the family of the deceased.  We would expect an autopsy to have been carried out to establish the cause of death.  Senior Constable Tawita acknowledged an investigation had been undertaken; he said the deceased’s clothes, including the underwear, were in the hands of the investigating officers.  He identified one of the officers who had found the body.  He said there was another one but, surprisingly, could not remember his name.  These officers should have been called or subpoenaed.  It is of concern that the appellant’s claim concluded without evidence being called that would have permitted findings of fact to be made on the crucial issues.

[17]	That said, like the Commissioner, we can proceed only on the evidence given at trial.  Our enquiry must necessarily be confined to the question of whether the police failed to take reasonable care to protect the deceased from harm, however it might have occurred.

[18]	Mr Beniata argued that there was a breach of that duty in leaving the deceased in two pairs of underpants.  Assuming he was, for even that is in dispute, we cannot see how that could have increased the risk of self-harm.  If the deceased committed suicide in the way suggested (which has not been established) he could have done so if left in two pairs of underpants or one.  It would have done no good at all to remove his boxer shorts and leave him with the underpants he is said to have used.

[19]	It seems to us that the only way in which, on the state of the evidence, the police could have been in dereliction of duty, is if their duty of care required that the deceased be kept under constant surveillance or, at least, not left unattended for the ten minutes or so it took for him to die.

[20]	As with any duty of care, the extent and nature of the duty owed by the police to a prisoner depends on the circumstances.  The circumstances relevantly include the risk of self-harm or harm by others - see the discussion in the judgment of Lord Hoffmann in Reeves v Commissioner of Police [1999] 
3 All ER 897 at 902.  There is no suggestion that the deceased may have been at risk of harm by others.  No special precautions were required on that account.  There is no suggestion, either, that there was any reason to believe the deceased had suicidal tendencies.  The foreseeable risks appear to have been those attending any drunk person who is taken into custody.

[21]	There are no guidelines in Kiribati which might indicate the level of surveillance appropriate in these circumstances but Ms Iteraera helpfully referred as to the English Code of Practice – Code C Detention, Treatment and Questioning of Persons by Police Officers 2003 which in clause 9.3 states that detainees should be visited at least every hour and those suspected of being under the influence of drink or drugs visited and roused at least every half hour.

[22]	These guidelines confirm that, unless alerted by indications that a prisoner faces special risks of self-harm or harm from another, even an intoxicated prisoner does not require constant surveillance.  In our view there is nothing in the circumstances of the case that could have required the police to maintain constant surveillance of the deceased.  To leave him unobserved for a period of ten minutes could not be considered a breach of the duty of care owed.

[23]	We agree with the Commissioner’s conclusion that the police have not been shown to have been negligent.

Result

[24]	The appeal is dismissed.  The appellant must pay costs to be agreed or taxed by the Registrar.

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Blanchard JA

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Handley JA 

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Hansen JA