Hurrell v Naufahu [2009] TOCA 2; AC 02-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 02 of 2009

BETWEEN:

SULUTENI HURRELL
Appellant

AND:

1. POLICE OFFICER SOANE NAUFAHU
2. POLICE OFFICER SIONE INU
3. MINISTRY OF POLICE
4. KINGDOM OF TONGA
Respondents

Coram: Ford P
Burchett J
Salmon J
Moore J

Counsel: Mr. Fifita for the Appellant
Mr. Kefu for the Respondent

Date of hearing: 29 June 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

Introduction

[1] The appellant has appealed against a judgment of Shuster J. delivered on 8 December 2008 following a judge alone hearing in September 2008. In the judgment under appeal, the appellant was the plaintiff in a civil claim against the police based on alleged false imprisonment and assault. The first two respondents were the police officers allegedly involved. There was no dispute that the third and fourth respondents would be vicariously liable if the appellant succeeded in his claim.

[2] In his statement of claim the appellant referred to two incidents, the first on 28 January 2003 and the second in July 2004. The primary judge found that there was no evidence that the appellant was ever in police custody in 2003 and there was no challenge to that finding. The case below and the appeal, therefore, were concerned only with the July 2004 incident. The appellant claimed that he was falsely imprisoned between 6 and 10 July 2004 and during that period he was handcuffed and unlawfully assaulted by the two police officers who allegedly tightened the handcuffs and moved them around on his arm causing him acute and severe pain. He sought damages under various heads totalling $13,500.00.

[3] In a statement of defence filed on behalf of all the defendants, the Solicitor General admitted that the plaintiff was in custody and handcuffed, between 6 and 10 July 2004 but went on to state in that particular paragraph of the statement of defence:

"But further adds that the plaintiff was kept in custody that long because the complainant, owner of the car which the plaintiff had stolen took time coming in to lodge a written complaint. In the end the complainant never came in to the Mu'a Police Station to lodge a written complaint and the plaintiff as a result was released."

[4] The second respondent, Police Officer Sione Inu, did not give evidence in the case. The judgment records that he currently resides overseas and could not be located.

The facts

[5] The appellant's case was summarised in the judgment below as follows:

"The plaintiff claims he was unlawfully arrested on 6 July 2004 and locked in a cell overnight at the Central Police Station even after the owner of the alleged stolen vehicle told the police he did not wish to press charges against the plaintiff for stealing his motor vehicle.

The plaintiff alleges on 7 July 2004 he was transported from the Central police Station and further detained at the police station at Mua where he was questioned by the police concerning the alleged criminal activities of his uncle in the Eastern District.

So in essence the plaintiff claims he was unnecessarily and unlawfully held in custody until 10 July 2004. He argues he should have appeared (in person) before a magistrate who should have bailed him. The plaintiff claims he remained handcuffed from his arrest until his release from custody which he says was on Saturday 10 July 2004. While detained at Mua the plaintiff claims the handcuffs were deliberately tightened on his wrist by the second defendant.

The plaintiff claims his blood circulation was affected as a result of overtightening of the handcuffs and as a result he suffered injuries which he says are clearly visible to this day.

The plaintiff says the handcuffs were only released when he asked to use the bathroom: and even then they were only unlocked/released from one of his wrists in order to allow him to use the facilities. The plaintiff also claims he was stood on by an officer whilst he was handcuffed."

[6] In relation to the appellant's arrest the evidence was that on the night of 6 July 2004 police out on traffic patrol in a marked police vehicle received a radio message circulating details of an allegedly stolen motor vehicle. The suspect vehicle was stopped and a police investigation commenced. An officer testified that the offender, who he identified as the appellant, tried to escape or evade arrest by running away however he was caught and detained at the scene. Another officer gave evidence that the plaintiff was not handcuffed following his arrest nor during his detention on the night of 6 July 2004 at the Central Police Station.

[7] The following day, 7 July 2004, the appellant was transferred to the Mu'a Police Station. He was placed in handcuffs when he was transported to Mu’a. The appellant said in evidence that his hands were handcuffed behind his back at Mu’a and the police then proceeded to ask him questions concerning his uncle, with whom he was living, about stolen bulls, stolen goods and property. The appellant said that he was detained at Mu'a until 10 July and he was handcuffed continuously during that time except when he went to use the bathroom and then one hand would be released. He was asked what about when he went to shower and he answered: "I did not have time to go to the shower because Soane and Sione Inu treated me like an animal and at that time I felt like committing suicide."

[8] The appellant said that during the period he was in custody he was interviewed many times and sometimes while he was sleeping the police would come and stand on the handcuffs or pull them or kick him. He alleged that it was the first respondent who tightened and pulled the handcuffs and did the kicking.

[9] There is no evidence that the appellant was taken before a magistrate at any time during his period in custody. His evidence was that upon his release from the Mu'a Police Station on 10 July he explained to his uncle and his brother what had happened to him and his aunt and sister then took him to hospital where his wrists were examined by a doctor. The doctor was not called as a witness but his report was produced by consent. The primary judge placed significant weight on its contents.

[10] The appellant's uncle said in evidence that he recalled seeing the appellant's hands following his release from custody on 10 July. He described them as "swollen big" and "not touchable". He said the area of the expanded flesh was blistered with brownish water. The witness said that the appellant had to go back to hospital on four occasions for treatment.

[11] The first respondent gave evidence and produced a cell book. He was asked by Crown counsel if there was any entry for the appellant between 6 - 10 July 2004 and he responded that there was not because the appellant had not been in a cell at the Mu'a Police Station during that period. The first respondent said that he recalled the appellant arriving at the Mu'a Police Station at around 4:30 p.m. on 6 July and he "noticed that his hands were beginning to swell and the handcuffs were tight." He said that he gave instructions for the handcuffs to be removed and went on to say that at approximately 6 p.m.: "I released this individual on the grounds that Siaosi did not wish to pursue the complaint."

[12] In cross-examination, the first respondent was challenged on his statement that the appellant had been released on 6 July at 6 p.m. He was asked if there were any documents kept at the police station which would have recorded the release. He replied that the station diary would record the release and they had searched for the station diary for the relevant period but were unable to locate it. The officer was then asked whether the appellant had been taken before a magistrate. He answered, "no" but later conceded that the second respondent may have taken him before a magistrate "to keep him in custody." In re-examination the first respondent was asked:

Q. "After you gave the order to release are you able to say what happened? Whether or not he was released or whether Inu (the second respondent) did other work?

A. "No he wasn't released at that time but I did order for him to be released because Siaosi Mafi said that he would not lodge a complaint."

The judgment

[13] The relevant factual findings by the primary judge are recorded as follows:

" * I find as a fact the following day the 7th of July the plaintiff was transferred to Mu'a Police Station.

* I find as a fact the plaintiff was placed in handcuffs when he was transported from CPS to Mu'a Police Station by vehicle, because the officer said so in evidence.

* I find as a fact that the evidence shows that the handcuffs were removed from the plaintiff when he arrived at Mu'a Police Station.

* I find as a fact upon hearing all the evidence and studying the police station and logs that the plaintiff was released from custody at Mua on 7 July 2004.

* I find as a fact that the plaintiff was not in custody on all the dates alleged in his statement of claim i.e. from the 6th-10th July 2004.

* In essence I find that there was no credible evidence adduced to show the plaintiff was handcuffed during the time he was lawfully detained at CPS and at Mua.

* Upon hearing all the evidence and considering the credibility of the witnesses I can find no credible evidence that the plaintiff suffered any injuries at the hands of the police from the 6th or 7th July 2004 when I find he was released from custody."

[14] In relation to the handcuff evidence the judge said:

"The current marks on his wrist are some distance up his arms from his wrist and at the thicker point on the arm. In my experience as a former police officer and chief police officer with over 10 years practical police experience, handcuffs have a natural tendency to rest on the thinnest part of an arm, which is usually just around the wrist. The marks I saw on the plaintiff's arms were higher up and on a much thicker part of the arm, as if someone had pulled the handcuffs back up; and into the thicker part of the arm and settled the handcuffs into the flesh -- perhaps for cause or effect. I then go back to look at the medical evidence before me in this trial -- EVIDENCE WHICH WAS -- admitted by consent. The doctor's report only indicated a blistering on the plaintiff's wrists seen on the 10th July which is three days after the plaintiff's release from custody on the defendant's version of events."

[15] There were other findings including findings scathing of the appellant and his witness in terms of credibility but completely accepting of the first respondent's evidence as expressed in this passage from the judgment:

"Accordingly based upon what I heard in court, evidence under oath, I accept the officer's (the first respondent) evidence as truthful. I accept his evidence in its entirety including his evidence that the plaintiff was released from Mua the same day he arrived, and which I find as a fact was on the 7th July 2004."

Grounds of appeal

[16] There were two principal grounds of appeal. The first was that the trial judge erred in law in allowing the respondents to argue that the appellant had been released from custody on 7 July 2004 and in making a finding to that effect when they had admitted in their statement of defence that he had been detained and handcuffed between 6 and 10 July. The second principal ground of appeal was that the trial judge erred in law in referring to his personal police experience and that showed he had "leaned to the defendant's side and was prejudicial to the appellant." It was alleged that his comments gave rise to "an apprehension of bias."

Discussion

[17] There is a plethora of authority to the effect that if an allegation made in a statement of claim is admitted then the party who made the allegation need not prove it. Thus, The Supreme Court Practice 1991, (the White Book) para 18/13/2 states:

"The effect of the defendant admitting the facts pleaded in the statement of claim is that there is no issue between the parties on that part of the case which is concerned with those matters of fact, and therefore, no evidence is admissible in reference to those facts (Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] Ch 597).”

[18] Bullen & Leake and Jacobs Precedents of Pleadings, 12th Ed. 78 states:

"The effect of an allegation which is admitted or treated as admitted is that the party who makes it need not prove it. Thus, if the facts pleaded in the statement of claim are admitted, there is no issue between the parties on that part of the case which is concerned with those matters of fact and, therefore, no evidence is admissible in reference to those facts."

[19] Cross on Evidence (Seventh Australian Edition) states, 3165:

"An admission made in the pleadings or pursuant to a notice to admit cannot, until formally retracted by leave, be contradicted by the party who makes it, and evidence relevant only to such

an admitted fact will be rejected as relevant to no issue in the proceedings."

[20] No application was made in the present case for leave to amend the statement of defence in relation to the admission in question and no leave was granted to withdraw the admission. In his closing submissions, counsel for the appellant specifically highlighted the fact that the admission had been made and, therefore, there was no issue in dispute about the period of time the appellant spent in custody, handcuffed. The appeal must, therefore, succeed on this ground alone.

[21] In relation to the second principal ground of appeal, the general rule is that, outside of the doctrine of "judicial notice", no finder of fact may act on their personal knowledge of the facts. Cross and Tapper on Evidence 11th Ed. (2007) 89, which cites Palmer v Crone [1927] 1 KB 804, states (p89): “The general rule is that neither a judge nor a juror may act on his personal knowledge of facts.” Recent cases involving alleged breaches of this rule in cases where a judge applied his own specialised knowledge include R v Fricker (Clive Fredrick) (CA, Unreported) Court of Appeal Criminal Division No: 9807581/Y2, 24 June 1999; Carter v Eastbourne Borough Council [2000] 2 P.L.R. 60 (a decision of Lord Bingham, sitting as a divisional court judge) and Wetherall v Harrison [1976] 1 QB 773. As O'Connor J. observed in Wetherall (779): "they (justices) must not, so to speak, start giving evidence in the case because it offends a number of our rules; above all, it is not in the presence of the parties and is not open to cross-examination."

[22] If counsel in the present case had been able to cross-examine on the statement in question made by the trial judge he would no doubt have referred to the allegations made in the statement of claim that when the first two respondents found that blisters on the plaintiff's hands from the handcuffs "were bad, they moved the cuffs to a different position instead of taking them off." Before us, counsel for the appellant contended that the handcuffs had been able to stay in place higher up the arm because they had been tightly secured.

[23] It is always open to a trial judge, of course, to make adverse findings, even strong adverse findings, against a party on credibility and the same applies to positive findings. However, the strongly worded positive finding on credibility in the present case in favour of the first respondent (a serving police officer), may seem somewhat surprising given his conflicting evidence as to when the appellant was released from custody at the Mu'a Police Station and the trial judge's unequivocal endorsement of his evidence does not seem to sit comfortably in a case such as the present where, in his judgment, the judge reverts to and relies upon his own experience and observations "as a former police officer and chief police officer with over 10 years experience."

[24] Given our conclusions on the primary ground of appeal relating to the admission made in the statement of defence, it then becomes necessary to turn to consider whether the respondents have been able to justify the period of incarceration as lawful. The tort of false imprisonment is a tort of strict liability. There is no onus on a plaintiff to prove that the imprisonment was unlawful or malicious. Once a plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls onto the defendant to prove that the detention was lawful. We agree with the primary judge that the appellant's arrest on 6 July 2004 and his detention overnight at the Central Police Station was lawful. Appellant's counsel conceded that before us. Given his attempt to escape arrest, the arresting officers could perhaps have been forgiven for handcuffing the appellant when taking him into custody at the Central Police Station. It is to their credit that they did not do this.

[25] The evidence is that handcuffs were applied the following day to transport the appellant to the Mu'a Police Station and the first respondent admitted that on arrival he noticed the appellant's hands were beginning to swell and the handcuffs were tight. In their statement of defence, the respondents admitted that the appellant remained handcuffed until he was delivered from the Mu'a Police Station on 10 July 2004. There was no evidence called by the respondents in the court below trying to justify the use of handcuffs. Rule 170 of the Prison Rules (Cap 36) provides that "handcuffs may be used as a means of restraint in the case of a prisoner whose conduct shall be so violent as to render such action necessary." The appellant was not a prisoner in terms of the Prison Rules. He had not even been charged with an offence. Before us, the Solicitor General quite properly accepted that the use of the handcuffs on the appellant could not be justified in any way.

[26] Even more significantly, perhaps, as indicated earlier, there is no evidence that the appellant was ever taken before a magistrate. Suffice it to say, by reference to another judgment of this court which is being delivered today - To'a v Naufahu AC 8/09 (which incidentally involves the same respondents) that finding can only mean that there has been a breach of the provisions of section 22 of the Police Act. That provision requires an arresting officer to take or send the arrested person before a magistrate to be charged "without unnecessary delay". That was not done and, therefore, the appellant's detention at the Mu'a Police Station was unlawful. The appellant must succeed in his claim.

Damages

[27] We accept that the appellant could not be described as a pillar of the community. He did not deny that on the night in question he had been lawfully arrested for theft of a vehicle and for drunk driving. As it turned out, the owner of the vehicle refused to press charges. Those transgressions of the law by the appellant, however, did not make it "open slather" to the police to do as they might. As was stated in a slightly different factual context in R (on the application of Abdi and others) v Secretary of State for the Home Department [2008] All ER (D) 247 (Dec):

"Those unlawfully detained (if they are unlawfully detained) should have the appropriate remedy, even if "undeserving”, no less than those unlawfully detained however "deserving”. The law cannot discriminate in such a context: and a broad, and in some respects subjective, appeal to "the merits” should not be permitted to subvert legal certainty and the proper application of firmly established principles.”

[28] At the conclusion of the appeal hearing, we decided that, instead of referring the matter back to the court below, the justice of the case could best be met by our receiving additional submissions and fixing an award of damages. Counsel agreed and we allowed them extra time in which to file written submissions on all aspects of the damages claim. We have taken those submissions into account.

[29] Our approach to the issue of damages mirrors the principles confirmed by this court in Edwards v Pohiva [2003] Tonga LR 231. For false imprisonment and assault (through use of the handcuffs) during the three days at the Mu'a Police Station, taking a broad global approach as to what is an appropriate amount for basic and aggravated damages and taking into account the real value of money in the Kingdom, we award the sum of $1,500.00.

[30] Exemplary damages are also claimed. Such damages are recoverable if the court concludes that the defendant in a case has exhibited such high-handed or outrageous conduct that the compensation awarded by way of basic and aggravated damages is an inadequate punishment.

[31] The evidence in the case before us clearly establishes that to be the position. Through the unlawful use of handcuffs, the first and second respondents subjected the appellant to inhuman and degrading punishment over a three-day period in an unsuccessful attempt to try to obtain certain admissions from him. This court has an obligation to make it very clear to the police that they are not above the law and such high-handed and outrageous conduct is always going to attract an additional award of exemplary damages. Under this head we fix a sum of $3,000.00 making a total damages award of $4,500.00. The appellant is entitled to costs in both this court and the lower court in an amount to be agreed or taxed.

Ford P
Burchett J
Salmon J
Moore J