Waiwori v Attorney-General [1997] SBHC 50; HC-CC 320 of 1995 (26 September 1997)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 320 of 1995

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CLEMENT WAIWORI

v

ATTORNEY GENERAL && ALLOYSIUS ORA

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Before: Lungole-Awich, J

Hearing: 2 September 1997 - Judgment: 26 September 1997

Counsel: A Nori for the plaintiff - P Kenilorea for the defendants

JUDGMENT

LUNGOLE-AWICH, J:

Statement of Claims

The claims of Mr. Clement Waiwori, the plaintiff, for unlawful arrest and being unlawfully kept in custody depend much on the credibility in the testimonies presented for him and for the defendants. Mr. Waiwori averred specifically in the statement of claims that the second defendant, Police Superintendent Aloysious Ora, acting out of malice and dislike for Mr. Waiwori, arrested and detained him. The Attorney General, the second defendant is sued vicariously, representing the Royal Solomon Islands Police. To give the full scope of the claims I set out here the relevant paragraphs:

"4. On or about the 29th day of July 1994 without any lawful excuse and with malice the second defendant arrested the plaintiff and placed him in custody at the Tulaghi Police Station cell for a period of four hours.

5. The second defendant acted with malice and out of personal dislike for the plaintiff and not in pursuance of his assigned duties as a police officer."

The Law About Arrest

The law concerning unlawful arrest in Solomon Islands came from the Common Law of England. The cause of action in the Common Law is false imprisonment. In Solomon Islands legislations have stated in detail when arrest may be made, and by whom. Arrest made outside the provisions of the legislations must therefore be taken to be unlawful interference with liberty. I think it is unnecessary in Solomon Islands to stick to the historical terminology, false imprisonment. The ordinary expression unlawful arrest and unlawful detention would be adequate and conveys accurately the information that the arrest and detention were made in circumstances outside the provisions of the legislations. Learned counsel Mr. Nori for the plaintiff, has not used the Common Law terminology, false imprisonment, in the statement of claims, his choice of words is commendable. In fact the terminology "false imprisonment" in the Common Law is not used to convey the literal meaning. It is a composite term that comprises the arrest and detention. The word false therein does not even mean fallacious or mendacious; it simply means wrongful. It is important for the court when deciding the claims of Mr. Waiwori, to bear in mind the provisions in the legislations in Solomon Islands that deal with power to arrest.

To establish his claims, Mr. Waiwori must support them with evidence that Superintendent Ora arrested him and that there were no grounds for the arrest. I understood from the testimony of Superintendent Ora that his defence was that he was acting to uphold the criminal law, his action in arresting Mr. Waiwori was justifiable. In that case it is for Superintendent Ora to show by evidence that he acted within the laws that authorised him to make the arrest. As stated, Superintendent Ora is a police officer. The duties of his office are stated in sections 21 of the Police Act, No. 6 of 1972. I quote:

"21. (1 ) Every police officer shall exercise such powers and perform such duties as are by law conferred or imposed upon a police officer, .............

(2) Every police officer shall be deemed to be on duty at all times.

(3) It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisance, to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient around exists. "

Superintendent Ora did not act in the execution of order or warrant issued so this case raises issues about the last part of subsection (3), namely, "to apprehend persons when legally authorised and when sufficient ground exists. "The duties of individual police officers are derived from the functions of the Solomon Islands Police Force as stated in section 5 of the Police Act. For the full understanding of the duties of individual police officers, it is necessary to bear in mind the statutory functions of the Police Force stated in the section. I quote:

"5. The Force shall be employed in and throughout Solomon Islands for the maintenance and enforcement of law and order, the preservation of the peace, the protection of life and property, the prevention and detection of crime and the apprehension of offenders, and shall be entitled for the performance of all such duties to carry arms;

Provided that no firearms shall be carried except with the authority of the Commissioner given under and in accordance with the general or special directions of the Prime Minister acting in his discretion. "

So when is a police officer authorised to arrest, and when does sufficient ground exist? In the first place it must be in the furtherance of his duties under section 21 (3) of the Police Act. The first such duty which involves arrest is the duty to execute all orders and warrants lawfully issued by competent authority. The rest of the duties in the section, such as gathering intelligence, preventing commission of offence, detecting and bringing offenders to justice may also require that a police officer makes arrest. In that case he usually applies for warrant of arrest. However, circumstances may arise when it may be necessary for a police officer to act instantly if the purpose of his duty is not to be defeated. In those circumstances he may arrest without warrant, and authority for it is in section 18 of the Criminal Procedure Code, Cap 4 of the Laws of Solomon Islands. It is in the section that one looks for guidance as to whether sufficient ground exists to make arrest without order or warrant issued by competent authority. I set out the section here:

"18. Any police officer may, without an order from a Magistrate and without a warrant, arrest-

(a) any person whom he suspects upon reasonable grounds of having committed a cognisable offence;

(b) any person who commits any offence in his presence;

(c) any person who obstructs a police officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody;

(d) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing;

(e) any person whom he suspects upon reasonable grounds of being a deserter from her Majesty's Army or Navy or Air Force; (inapplicable in Solomon Islands)

(f) any person whom he finds in any highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;

(g) any person whom he suspects upon reasonable grounds of having been concerned in any act committed at any place out of Solomon Islands which, if committed in Solomon Islands, would have been punishable as an offence, and for which he is, under the Extradition Act 1870, or the Fugitive Offenders Act 1967, or otherwise, liable to be apprehended and detained in Solomon Islands;

(h) any person having in his possession without lawful excuse the burden of proving which excuse shall lie on such person, any implement of housebreaking;

(i) any person for whom he has reasonable cause to believe a warrant of arrest has been issued;

(j) any released convict committing a breach of any provision prescribed by section 40 of the Penal Code or any rule made thereunder."

Compare the above with section 21 of the Criminal Procedure Act, which provides for authority of a private person, when he makes the arrest described in common parlance as citizen's arrest although the arrest may be made by non-citizens. The section reads:

"21. (1) Any private person may arrest any person who in his view commits a cognisable offence, or whom he reasonably suspects of having committed a felony provided a felony has been committed.

(2) Persons found committing any offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorised by him."

The section adopts the wording from the statement of the Common Law and must be taken to adopt the case law interpretations concerning the circumstances and the extent of the authority of a private person to arrest. There has been strong criticism of one of the rules enunciated in the case of Walters v W.H. Smith & Sons Ltd. [1913] UKLawRpKQB 211; [1914] 1 KB 595. The rule criticised is in the proviso, "provided a felony has been committed." For arrest made by a private person to be lawful, an offence, felony, must have been committed by the arrested person or by someone else, reasonable grounds to believe that offence has been committed is not sufficient. The rule creates difficulty in the exercise of the authority of a private ,person to arrest. The absurdity of the rule may be illustrated by this example. Suppose alarm is raised in a neighbouring house and as the result of the alarm a neighbour arrests a person running away from where the alarm comes. In the end it turns out that no offence has been committed. Should the helpful neighbour be held liable for the arrest? Suppose the police appeals to the public to give information about a person the police wants to interview. As the result a desk employee of an airline refuses the man to board a plane, holds his passport and locks exit until the police arrives. Then it turns out that the offence had not been committed although reasonable suspicion remains. Should the helpful airline employee be liable for false arrest? Note that the police officer responsible for issuing the information may not be liable if the suspicion is based upon reasonable grounds. I think the rule works unjustly especially in countries like Solomon Islands where criminal offences have largely been codified and are fewer than in countries where multitude of offences exists in the Common Law. Do we need to keep a provision in adopted law even when we discover that the provision brings into the particular area of law, undesirable uncertainty or even works unfairly?

Proofs

In this case Superintendent Ora's testimony sought to show that he made the arrest so as to prevent the commission of offence. He said that his reason for the arrest was that Messrs Waiwori and Pome were, "carrying beer." That defence will have to be borne out by evidence.

There are several discrepancies in the testimonies of Mr. Waiwori and Mr. Pome, but the central story of their accounts of events of the 29.7.1997 is the same. It is that they were arrested by Superintendent Ora in Tulaghi and taken to the police station there. That was admitted by Superintendent Ora in defence. The cases for the plaintiff and defendants differed on the location and time of the arrest, on whether Mr. Waiwori and Mr. Pome were detained in police cell at all, and on whether reason was given for the arrest, and if so, what the reason was.

It is for the plaintiff to prove the facts upon which he relys for his claims. Where the stories in the case for Mr. Waiwori on the one hand, and for Superintendent Ora and Attorney General on the other, differ I must be satisfied that the balance of credibility and of sufficiency of evidence is in favour of Mr. Waiwori, if not, I am obliged to dismiss the claims.

Messrs Waiwori and Pome told court that they were arrested by Superintendent Ora outside Vanita Restaurant in Tulaghi around 9.45 p.m. They had been drinking in the restaurant, also described as bar. They were taken to the police station and detained in police cell until 3 or 4 am, some 4 hours later. Mr. Waiwori said that Superintendent Ora did not tell them the reason for the arrest at all and that even at the police station when asked by the desk officer on duty for the reason for the arrest, "Ore did not explain", to her, he simply said that Mr. Waiwori and Mr. Pome be put in cell, "it was an order." Mr. Pome's account differed, he said that at the station Superintendent Ora said, "we go into the cell, we two ,were drinking beer on the road." Superintendent Ora testified that he gave reason for the arrest at the time of the arrest; the reason was that Mr. Waiwori and Mr. Pome were, "carrying beer," after 9.00 p.m. That time the two were on the road leading from the bar to the police station. On that issue testimonies for Mr. Waiwori's case conflicted while the one testimony of Superintendent Ora for defence stood un-contradicted with any other for the defence. Of course it conflicted with the testimony of Mr. Waiwori. I must therefore decide that Superintendent Ora proved satisfactorily that he gave reasons to Mr. Waiwori and Mr. Pome at the time of the arrest and when he was instructing Constable Bisa to detain the two. Evidence adduced showed so convincingly.

The Law Again

According to the law, if the reason given for the arrest and detention is not correct reason in law then the arrest and detention are malicious and unlawful. I must point out here that by malicious I mean improper reason and not spite as in common parlance. Has there been proof that the reasons given by Superintendent Ora, at the time he arrested Mr. Waiwori and at the time he gave instruction to detain him were untrue? Has there been proof of Superintendent Ora harbouring dislike for Mr. Waiwori and that the dislike was the true reason for the arrest and detention? In the evidence adduced nothing showed that the reasons given by Superintendent Ora were not the true grounds upon which he made the arrest and Mr. Waiwori detained. As to whether the reasons are proper legal justification is a question of law for the court to determine. There was also no evidence about a feeling in Superintendent Ora of dislike for Mr. Waiwori. Mr. Waiwori or Mr. Pome did not adduce any evidence which they wanted the court to accept as the true reason for their arrest and detention so that the court could reject the reasons given by Superintendent Ora and conclude that the arrest and detention were for improper reason, that is, malicious.

It is common cause that Mr. Waiwori and Mr. Pome were arrested and taken to police office. It is contended by the defendants that Mr. Waiwori and Mr. Pome were put in cell at all, let alone for 4 hours. Given the state of the evidence on the point I must find that Mr. Waiwori has again failed to prove that Mr. Pome and him were put in cell. Accounts given by the two differed on the descriptions of the cell whereas those given by Superintendent Ora and Police Constable No.497 John Sara, defence witness No. DW3, matched. I also found the account given by Woman Constable No. 730 Margaret Bisa, the officer who would have admitted Mr. Waiwori and Mr. Pome to detention, and that given by Constable Sara, consistent and clear on the point that the prisoners were not put in cell because the Station Sergeant Harry Masai removed them by force and in defiance of the order given by Superintendent Oral. The testimony of Woman Constable Bisa who made entries in the record also explained satisfactorily cancellations and delays in entries. The explanations dispelled all suspicion about the entries that were cancelled and about irregularity in sequence. The conduct of Station Sergeant Harry Masai need not be commented on, it is an internal matter for the police.

Mr. Waiwori has proved that he was arrested, and I have decided that reasons for his arrest were given. I still have to satisfy myself that they are proper reasons, that is, reasons based on law. If I am not satisfied on the evidence adduced I will have to accept Mr. Waiwori's case that the arrest and the short detention in police office at Tulaghi was malicious and therefore unlawful. It is for the defence to prove legal justification, by showing that reasons were given for the arrest and detention and that the reasons are correct in law.

Superintendent Ora said that the reason he gave at the time of the arrest was that Mr. Waiwori and Mr. Pome were, "carrying beer," after 9.00 p.m. According to the evidence, it was after closing time. The defence admitted in evidence that Mr. Waiwori and Mr. Pome carried beer out of Vanita Restaurant, also referred to as bar. Mr. Waiwori actually said that one of the bottles had been opened and drank from, the content was halfway. Learned counsel Mr. Nori submitted that there is no offence of merely possessing beer outside a restaurant or bar or on a road so the arrest was for a non-existent offence and therefore unlawful. I agree with the reasoning of Mr. Nori that if the arrest was for an offence which did not exist then the arrest would be unlawful. A mistaken belief that an act constitutes an offence, even if it is a honest mistaken belief, will not justify an arrest. The common offences that we usually remember are those of drinking in public place, on public road and in a vehicle. There are, however, not so well known offences of carrying beer away from a restaurant, provided for in section 12 (3) of the Liquor Act Cap.33 of the Laws of Solomon Islands and of leaving a bar after hours with liquor in possession under sections 10(1) and (6) of the Act. It is also an offence to drink in a restaurant when not a lodger or having a meal, and an offence to drink in a bar after closing hour, but we are not concerned with those latter two offences. Although the former two offences are not well known, Superintendent Ora was aware of them. I quote sections 10(1), (3) and (6) and 12(3) here:

"10 - (1) The holder of a publican's licence shall not keep his premises open for the sale of liquor, and shall not sell any liquor to be drunk or consumed in or upon the licensed premises except-

(a) on week days other than Good Friday and Christmas Day, between the hours of ten in the forenoon and half past ten in the evening;

(b) on Sundays, Good Friday and Christmas Day between the hours of 12 non and half past two in the afternoon and between the hours of seven in the evening and ten in the evening.

(3) The holder of a publican's licence shall not sell or deliver from his premises any liquor in unbroken containers, or any liquor not intended to be consumed upon the premises in respect of which the licence is granted, after nine o'clock in the evening on any day.

(6) Any person not being a bone fide lodger, the bona fide guest of a bona fide lodger or a person employed at the licensed premises for the purpose of business carried on there by the licensee, drinking liquor in any licensed premises or found in the act of leaving the same with liquor in his possession, at any time not within the hours and days specified in subsection 11) shall be guilty of an offence and shall, for every such offence be liable to a fine of fifty dollars.

12 (3) Any person not being a person taking a table meal in the licensed premises, drinking liquor in the licensed premises or found in the act of leaving the same with liquor in his possession shall be guilty of an offence and shall be liable to a fine of fifty dollars."

When Superintendent Ora gave reason to Mr. Waiwori and Mr. Pome upon arrest that he was arresting them for "carrying beer," the arrested persons were carrying away beer from a restaurant; that was an offence. Superintendent Ora knew so because he had been drinking with them at the same table a little earlier. If the restaurant was actually a bar it was still the offence of carrying away liquor from the bar after 9 p.m. Note that Superintendent Ora had left the restaurant or bar at 9.45 p.m. before he returned to make the arrest. In any case the facts would amount to reasonable grounds for Superintendent Ora to suspect that the offences had been committed and further that offence of drinking on public road was being committed. In my view the reason given by Superintendent Ora at the time of arrest covered the offences in sections 10 and 12 and therefore lawful reason for the arrest and detention albeit a short one. that followed.

There is another aspect of the case. Constable Bisa stated categorically and credibly that she saw the arrest being carried out, there was street light. She saw the arrested person actually drinking beer at the time of the arrest. There was also evidence from Mr. Waiwori himself that one of the beer bottles carried had been opened and half drank from. That together with what Constable Bisa said is sufficient proof that the arrested persons were actually drinking beer on public road. That would be an offence under section 68 of the Liquor Act. In the circumstances it would not be necessary for Superintendent Ora to inform them of the reason for the arrest. They would be taken to have known the reason. I find as a fact that there was a second reason for the arrest, that of drinking on public road and I decide that Superintendent Ora needed not give that reason as it was well obvious to the persons being arrested in the act.

Final Determination

In my judgment the arrest of Mr. Clement Waiwori on 29.7. 1994 by Superintendent Aloysious Ora was lawful. The short detention that followed was also lawful. Mr. Waiwori has failed to prove his claim against Superintendent Ora and vicariously against Attorney General, for unlawful arrest and unlawful detention. His case is dismissed. Costs to the defendants from Mr. Waiwori. The Station Duty Book and Arrested Persons Book are to be returned to the Commissioner of Police if after 30 days Mr. Waiwori will have not filed appeal.

Dated this 26th day of September 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge