Tawitaa v Attorney General [2024] KIHC 37; Civil Case 87 of 2020 (30 October 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 87 of 2020

BETWEEN: Captain Rabunataai Tawitaa Plaintiff

AND: Attorney General iro The Kiribati Police Service
AND: Sergent Rotieta Ubati
Defendants

Date of Hearing: 18 & 30 September 2024
Date of Judgment: 30 October 2024

Appearances: Mr. Banuera Berina for the Plaintiff
Ms Tumai Timeon for the Defendant

JUDGMENT-LIABILITY

Introduction

1. The plaintiff is a Captain. On 10 July 2020, at about 2 o’clock in the afternoon, he was at his house when some police officers took him to the police station. At the police station, he was locked up in the police cell for a few hours. The parties disputed the period in the cell. The plaintiff said it was 5 hours, and the defendant claimed 2:20 hours.
   
2. He was released after his statement was taken. He was told that some community members had complained about him because he was selling liquor without a license and made fun of the community members when they visited him
   
3. The plaintiff sued the defendant for unlawful arrest and inhumane treatment when he was put in a cell that was littered with human faeces and stench with urine.
   
4. The Defendant pleaded section 74(1)(d) and (h) as the authority for the Plaintiff’s arrest.
   

Section 74(1) (d) and (h) of the Police Powers and Duties Act 2008

5. Section 74(1)- A police officer, without a warrant, may arrest an adult who the police officer suspects, on reasonable grounds, has committed or is committing an offence, if it is reasonably necessary for one or more of the following reasons...

(d) to obtain or preserve evidence relating to the offence;

(h) to prevent a person fleeing from a police officer or the location of an offence.

Issue:

6. The issues as submitted by the Plaintiff are as follows;
   
   • - Whether or not the Defendant can rely on section 74(1)(d) and (h) of the Police Powers and Duties Act 2008, and
   • - If the Defendant cannot bring themselves under section 74(1)(d) and (h), the imprisonment was unlawful, and the Defendant would then be liable for wrongful imprisonment of the Plaintiff.
     

Analysis of evidence

1. Was there a reasonable ground that the plaintiff had committed or was committing an offence before the arrest?
   

7. Before determining the above issues in the preceding paragraph, it is necessary to determine whether the Defendant suspected the Plaintiff, on reasonable grounds, to have committed or was committing the offence before his arrest.
   
8. At the hearing, the Defendant’s first witness testified about receiving complaints against the Plaintiff that he was selling liquor without a license and uttering insulting and intimidating words, which warranted his arrest.
   
9. The Plaintiff submitted that this was insufficient to justify the arrest. No other evidence was produced in court to show they had collected other evidence before the arrest, especially from the relevant Authority that the Plaintiff had no license to sell liquor nor evidence in the second Defendant’s affidavit that pointed to the words allegedly uttered that could amount to insulting or intimidating, to establish that they had formed a reasonable ground that the Plaintiff had committed or was committing the offence.
   
10. The Defendant referred this court to the case of Holgate-Mohammed v Duke [1984] All England Law Report 1054. The defendant relied on the test used in that case, the Wednesbury, to determine whether the discretion to arrest by a police officer was based on reasonable grounds. As quoted by the defendant, the Wednesbury test is ‘the test of reasonableness or unreasonableness requires a compromise between the two interests- the liberty of the arrested person and bringing criminals to justice.’ The House of Lords, in that case, stated that ‘...given that reasonable cause for suspicion, the arrest was within the police statutory power of arrest without a warrant.’ Therefore, this falls back on the critical consideration of whether a reasonable cause for suspicion existed before the arrest that an offence had been committed or was committed by the Plaintiff.
    
11. As indicated in the above paragraphs, the arrest was made because the police received complaints against the Plaintiff that he was selling liquor without a license and uttering insulting and intimidating words. The Plaintiff was not told what charges he faced when he was arrested. When locked up for a few hours, the Defendant said more investigations were made before the Plaintiff’s caution statement was taken. The Plaintiff submitted, and this Court agrees, that this shows a lack of reasonable grounds before the arrest. The Defendant’s first witness could not answer when she was asked during the cross-examination whether they took other statements from the public regarding this offence before the arrest. This indicates that no other statement was taken before the arrest, which confirms the finding that there were no reasonable grounds for the arrest.
    
12. The Wednesbury test is based on the importance of weighing the liberty of the arrested person against the need to bring criminals to justice. This is in line with the requirement under our laws that before an arrest without a warrant is made, the police must form a suspicion based on reasonable grounds that the suspect has committed the offence or is committing it. The mere fact that the Defendant received complaints against any person (the Plaintiff in this case) is insufficient to arrest that person without a warrant. The arrest must be based on reasonable grounds before a person’s liberty can be challenged.
    
13. Therefore, I agree with the Plaintiff that the arrest without a warrant against him was unlawful.
    
    2. Did the arrest fall within the police's statutory powers of arrest without a warrant?
       
14. Despite the above finding, I still want to consider whether the arrest falls within the police's statutory powers under section 74(1)(d) and (h), which says that - A police officer, without a warrant, may arrest an adult who the police officer susceptible grounds, has committed or is committing an offence, if it is reasonably necessary for one or more of the following reasons...

(d) to obtain or preserve evidence relating to the offence;

(h) to prevent a person fleeing from a police officer or the location of an offence.

15. The arrest was made without a warrant to obtain the evidence, which is the Plaintiff’s caution statement. The Plaintiff argued this was unnecessary and that his statement could have been taken at his home. In the Holgate case, the House of Lords accepted the police’s reasoning as relevant and reasonable for the arrest as they agreed the suspect would give more truthful answers when interrogated at the police station than at home. In the case at hand, the Defendant stated that the arrest was necessary to take the caution statement, which aligns with their powers to obtain evidence relating to the offence under section 74(1)(d). This provision does not require proof that the caution statement could only be taken at the police station to be justifiable.
    
16. The second point in relation to section 74(1)(h)- to prevent a person from fleeing a police officer or the location of the offence, the Defendant submitted that the arrest without a warrant was necessary as the Plaintiff is a sea Captain and would likely be absent when needed for the investigation. Does this meet the meaning of section 74(1)(h), which requires the arrest without a warrant to prevent the suspects from fleeing a police officer or the location of an offense? The mere fact that the Plaintiff is a sea captain would not make him a risk of fleeing the police interrogation. There must be at least evidence to show that he had tried to escape from the police or South Tarawa and Betio.
    

(c) How long did the defendant imprison the plaintiff?

17. The defendant, through the first witness, said that the plaintiff was locked for only 2 hours and 20 minutes, from 2 pm to 4:20 pm. There was a record book, but she could not provide it in court.
    
18. The plaintiff testified that he was in the cell for 5 hours. He did not have a watch to record the time, but that was just his assumption. When cross-examined, he agreed that he was only in prison for 2 hours and 20 minutes.
    
19. I find that the plaintiff was only locked up for 2 hrs and 20 minutes.
    

(d) Was the defendant treating the plaintiff inhumanely?

20. The plaintiff testified that he was put in a cell that was littered with human faeces and a stench of urine. He had to remain standing throughout the time because of the condition of the cell.
    
21. Conversely, the defendant testified through the first witness that cell 3, where the plaintiff was locked in, was clean as it should be. This was only an assumption about the cell's condition. The third witness said the cell was cleaned at the beginning of the shift. He could not provide a steady response as to whether he saw the cell's status when the plaintiff was put in.
    
22. For the above reasons, I accept the plaintiff’s evidence regarding the condition of the cell when he was in it. His evidence on this was not shaken.
    

ORDER

- For the above reasons, I find the Defendant liable for unlawfully arresting the Plaintiff with no reasonable ground that he had committed the offence or was committing it.

- The unlawful arrest was for a period of 2 hours and 20 minutes

- I also find the Defendant liable for treating the Plaintiff inhumanely when he was locked up in a cell that was littered with human faeces and stench with human urine.

- I will list the case again to hear parties on damages. The Plaintiff must request a hearing date through PTC within two weeks.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice